                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 WILLARD JAMES HALL,                        No. 14-56159
     Petitioner-Appellee,
                                             D.C. No.
               v.                   3:05-cv-00010-WQH-JMA

 F. W. HAWS,
    Respondent-Appellant.                     OPINION


        Appeal from the United States District Court
          for the Southern District of California
        William Q. Hayes, District Judge, Presiding

           Argued and Submitted October 19, 2015
                    Pasadena, California

                        Filed July 3, 2017

   Before: Harry Pregerson and Consuelo M. Callahan,
 Circuit Judges and Stanley Allen Bastian,* District Judge.

              Opinion by Judge Harry Pregerson;
                  Dissent by Judge Callahan




    *
      The Honorable Stanley Allen Bastian, District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by
designation.
2                           HALL V. HAWS

                            SUMMARY**


                           Habeas Corpus

     The panel affirmed the district court’s order granting
Willard James Hall’s motion to reopen his habeas
proceedings under Fed. R. Civ. P. 60(b)(6) and its order
conditionally granting Hall’s first amended habeas corpus
petition challenging his California state-court conviction for
first-degree murder unless the State of California grants Hall
a new trial within 90 days.

    The panel held that Hall’s Rule 60(b) motion was not
inconsistent with AEDPA’s bar on second or successive
petitions, AEDPA’s statute of limitations, or AEDPA’s
exhaustion requirement. The panel held that the district court
did not abuse its discretion in reopening Hall’s case under
Rule 60(b)(6), in this extraordinary case involving a
petitioner whose habeas petition was dismissed without
reaching the merits of his claim, while his co-defendant was
granted habeas relief on the same claim based on the same
error from the same trial. The panel could not find fault with
the district court’s determination that Hall, a pro se litigant,
proceeded diligently or that the delay between the dismissal
of his petition and the filing of his motion to reopen was
reasonable.

    The panel also held that habeas relief is warranted. The
panel held that the trial court’s use of California Jury
Instruction Criminal 2.15, which allowed the jury to infer

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

guilt of murder from evidence that the defendants were in
possession of recently stolen property plus slight
corroborating evidence, is an error of constitutional
magnitude, and that the California Court of Appeal’s
determination otherwise was objectively unreasonable. The
panel held that it was an unreasonable application of clearly
established federal law for the California Court of Appeal to
evaluate harmlessness under the less stringent standard set
forth in People v. Watson, 46 Cal.2d 818 (1956), rather than
under the more stringent Chapman v. California, 386 U.S. 18
(1967), standard for reviewing errors of constitutional
magnitude. Analyzing harmlessness pursuant to Brecht v.
Abrahamson, 507 U.S. 619 (1993), the panel concluded that
the state court’s harmless error determination was also
unreasonable because the instructional error resulted in actual
prejudice, as there are grave doubts about whether the jury
would have found Hall guilty beyond a reasonable doubt
without the unconstitutional instruction.

     Judge Callahan dissented. She wrote that the majority
repeats the error of Sherrors v. Woodford, 425 F. App’x 617
(9th Cir. 2011), which granted the habeas petition of Hall’s
co-defendant based on the same supposed error, even in the
face of additional facts demonstrating Sherrors was wrongly
decided. She wrote that the majority ignores that the co-
defendant was retried without the suspect instruction and
convicted, and invents an error of constitutional magnitude
where none exists, brushing aside AEDPA standards and the
Supreme Court’s repeated instructions to defer to reasonable
state court decisions. She also wrote that Hall is not
deserving of Rule 60(b) relief, which impermissibly rewards
his inaction and gamesmanship, and unfairly imposes the cost
of his retrial on the state.
4                      HALL V. HAWS

                         COUNSEL

Matthew Mulford, Deputy Attorney General; Kevin Vienna,
Supervising Deputy Attorney General; Julie L. Garland,
Senior Assistant Attorney General; Office of the Attorney
General, San Diego, California; for Respondent-Appellant.

Holly A. Sullivan and Robert H. Rexrode, San Diego,
California, for Petitioner-Appellee.


                         OPINION

PREGERSON, Circuit Judge:

    This is a rare and extraordinary case. On July 7, 2001,
Ronnie Sherrors and Petitioner Willard Hall as co-defendants
were convicted of first degree murder in state court. The trial
court’s jury instructions included California Jury Instruction
Criminal (“CALJIC”) 2.15, which allowed the jury to infer
guilt of murder from evidence that defendants were in
possession of recently stolen property plus slight
corroborating evidence.

    On July 16, 2003, on Sherrors’s and Hall’s consolidated
direct appeal, the California Court of Appeal determined that
the trial court erred when it instructed the jury on CALJIC
2.15. People v. Hall, No. D038857, 2003 WL 21661225, at
*6 (Cal. Ct. App. July 16, 2003) (unpublished). In so
concluding, the Court of Appeal relied on People v. Prieto,
which held that “proof a defendant was in conscious
possession of recently stolen property simply does not lead
naturally and logically to the conclusion the defendant
committed a rape or murder.” 30 Cal. 4th 226, 229 (2003)
                       HALL V. HAWS                          5

(quoting People v. Barker, 91 Cal. App. 4th 1166, 1176
(2001)). The California Court of Appeal, however, affirmed
the convictions of Sherrors and Hall applying the People v.
Watson, 46 Cal. 2d 818, 836 (1956), harmless error standard.

    After exhausting state court remedies, Hall filed his own
habeas petition in federal court raising a CALJIC 2.15
instructional error claim. Later Hall quit pursuing this habeas
petition because he believed that he “co-submitted” another
federal habeas petition with Sherrors. Sherrors, who filed the
petition, was granted habeas relief. Hall, who had relied on
Sherrors to advance their instructional error claim on Hall’s
behalf, found himself out in the cold. But the U.S. district
court judge William Q. Hayes in San Diego recognized these
extraordinary circumstances. The district court granted
Hall’s motion to reopen his original habeas proceedings under
Federal Rule of Civil Procedure 60(b)(6) and granted Hall’s
habeas petition consistent with our court’s earlier grant of
habeas relief to Sherrors. For the reasons set forth below, we
affirm.

                     BACKGROUND

    Here’s the story about how the case came about. In
September 1999, after experiencing financial problems and
developing a drug habit, Stephen Foth moved back to his
home town of San Diego to “get his life back in order.”
Foth’s close friend, Grace Ko, permitted him to stay with her.
On the afternoon of September 29, 1999, Foth told Ko he was
going to see another friend to borrow some money and would
return later. Foth borrowed Ko’s black Audi A4, her cell
phone, and her Visa card so that he could put some gas in the
car. The next day, Foth’s body was found in a pumpkin
6                            HALL V. HAWS

patch.  He had bled to death after being stabbed
approximately 83 times.

    Nine days after the body was found, Lena Hixon told a
friend that she witnessed “something . . . pretty bad” and that
two men had threatened her life. The friend notified the
police after Hixon refused to do so. At first, Hixon told the
police that she committed Foth’s murder with two men
named Benjamin Wilson and Terrence Smallgreen. A few
days later, Hixon changed her story and told the police that
Ronnie Sherrors and Willard Hall were involved in the
murder. Sherrors and Hall were charged with the murder of
Stephen Foth.1 Hixon entered into a plea agreement in which
she agreed to plead guilty to assault with a deadly weapon
and conspiracy to sell cocaine, and to testify against Sherrors
and Hall.

   Although inconsistent at times, Hixon’s testimony was the
key to the prosecution’s case. Here is Lena Hixon’s story:

    On September 29, 1999, Foth approached Hixon and
asked if she knew where he could buy some rock cocaine.
She did and the two drove in Ko’s Audi to an apartment
where Sherrors and Hall were living. Hixon, Sherrors, and
Hall handled drug sales for Hixon’s boyfriend, Michael
Washington. Sherrors, Hall, and Foth drove off together in
the Audi, leaving her behind. After 15 to 20 minutes,
Sherrors and Hall returned in the Audi without Foth. Hixon
believed that Foth had loaned the Audi to Sherrors and Hall
in exchange for drugs. She got in the Audi with Sherrors and
Hall to drive around and smoke some marijuana.


    1
        Hall and Sherrors were represented by counsel at trial.
                        HALL V. HAWS                          7

    After driving around in the Audi with Sherrors and Hall,
Sherrors drove off the highway and parked the Audi in a dirt
lot. Sherrors and Hall then opened the trunk, from which
Foth climbed out. Hixon testified that she demanded to know
what was going on, but Sherrors threatened her and grabbed
her hands, breaking two of her acrylic fingernails.

    Then, Sherrors began to stab Foth, while Foth was
tussling with Hall. Sherrors forced Hixon to stab Foth.
Sherrors and Hall stripped Foth and threw his body into the
bushes. They put Foth’s clothes in the trunk and drove away
in the Audi. Hixon, Sherrors, and Hall stopped at a gas
station convenience store where Hall was thwarted trying to
use Foth’s ATM card.

    Katherine Davis, Hixon’s fellow inmate at Los Colinas
Women’s Detention Center, also testified at trial. Hixon had
spoken to Davis on several occasions about the incidents on
September 29. In these conversations, Hixon again pointed
the finger at Sherrors and Hall, but her story to Davis differed
from the story she told to the police. Hixon’s story to Davis
implied that Hixon was much more involved in the crime than
the story she told to the police.

    The State’s case against Hall relied overwhelmingly on
Hixon’s story. In addition to Hixon’s version of events, the
State’s evidence against Hall included (1) testimony that Hall
was seen sitting in the passenger side of the Audi days after
the crime; (2) testimony that Sherrors and Hall had seen a
newscast mentioning the Audi, and the next morning the Audi
was found burned; and (3) Foth’s high school class ring found
in a pair of Hall’s pants. None of the evidence found at the
crime scene—a shirt, a pair of size eight sneakers, a
8                      HALL V. HAWS

wristwatch, a broken fingernail, a pair of bloodstained socks,
and a shoe print in the soil—was linked to Hall.

    Crucial to the federal habeas appeal before us now, at the
close of trial, the state jury was instructed on CALJIC 2.15,
which states:

       If you find that a defendant was in possession
       of recently stolen property, the fact of that
       possession is not by itself sufficient to prove
       an inference that the defendant is guilty of the
       crime of murder. Before guilt may be
       inferred, there must be corroborating evidence
       tending to prove a defendant’s guilt.
       However, this corroborating evidence need
       only be slight and need not by itself be
       sufficient to warrant an inference of guilt.

       As corroboration, you may consider the
       attributes of possession, time, place and
       manner; that the defendant had an opportunity
       to commit the crime charged; the defendant’s
       conduct; his false or contradictory statements,
       if any; and any other statements that may have
       been made with reference to the property.

     On July 7, 2001, the jury convicted Sherrors and Hall of
first-degree murder. Sherrors and Hall were both sentenced
to life without the possibility of parole, plus one year.

               PROCEDURAL HISTORY

   On July 16, 2003, on consolidated direct appeal, the
California Court of Appeal found that it was error to instruct
                        HALL V. HAWS                          9

the jury pursuant to CALJIC 2.15, but affirmed Sherrors and
Hall’s convictions under the People v. Watson, 46 Cal. 2d
818, 836 (1956), harmless error standard. People v. Hall, No.
D038857, 2003 WL 21661225, at *6 (Cal. Ct. App. July 16,
2003) (unpublished). The California Supreme Court
summarily denied their petitions for review.

     On January 3, 2005, Hall filed a pro se habeas petition
under 28 U.S.C. § 2254 in federal district court. On March
15, 2005, Hall filed his First Amended Petition for Writ of
Habeas Corpus. His petition alleged the following claims:
(1) the trial court gave an improper modification of jury
instruction CALJIC 2.15; (2) the trial court gave an improper
modification of jury instruction CALJIC 8.81.17; and (3) the
trial court provided an incomplete verdict form to the jury.
The California Attorney General’s Office and the Warden
F.W. Haws (“the State”) moved to dismiss the petition on the
ground that Hall had failed to exhaust the second claim in
state court.

     Because Hall had failed to demonstrate good cause for
failing to exhaust the second claim, see Rhines v. Weber,
544 U.S. 269, 278 (2005), the district court informed Hall on
January 25, 2006 of his two options: (1) voluntarily dismiss
his entire federal petition and return to state court to exhaust
his unexhausted claim, or (2) formally abandon his
unexhausted claim and proceed with his two exhausted
claims. On February 28, 2006, Hall filed a motion for a 30-
day extension to file a formal abandonment, which the district
court granted. Thereafter, Hall made no further filings. He
did not file a formal abandonment or any other motion. As a
result of Hall’s failure to comply with the district court’s
order, the district court dismissed his petition without
prejudice on May 19, 2006.
10                     HALL V. HAWS

    Meanwhile, in 2005, Sherrors, Hall’s co-defendant, was
also advancing a federal habeas petition, propounding the
same CALJIC 2.15 argument as Hall. Hall believed that he
was a “co-submitter” in these filings based on Sherrors’s
representations to him and their history of shared appeals. On
November 2, 2007, the district court granted Sherrors’s
habeas petition, finding that the use of CALJIC 2.15
constituted prejudicial constitutional error. The State
appealed to the Ninth Circuit.

    On May 29, 2009, Hall filed a “motion to join” Sherrors’s
case. The district court construed the motion to join as a Rule
60(b) motion to reopen his habeas proceedings. The district
court dismissed the motion without prejudice, stating that
Hall could re-file within 60 days of receiving notice of the
Ninth Circuit’s decision in Sherrors’s appeal. On August 31,
2011, the State served on Hall a copy of this court’s decision
in Sherrors v. Woodford, 425 F. App’x 617 (9th Cir. 2011),
which affirmed the district court’s grant of habeas relief to
Sherrors.

    Within 60 days of receiving notice of our decision in
Sherrors, Hall re-filed his motion to join Sherrors’s case. In
his motion, Hall stated that he “had a good faith reason to
believe his interests were included in any outcome of
[Sherrors’s case]” because Sherrors had communicated to
Hall and to the district court that the petition was “co-
submitted,” and because “throughout the state courts
[process], counsel for both co-defendants used this language
of joinder to ensure that both defendants benefitted from any
success through their appeals.” After the State opposed the
motion, a pro se Hall filed a motion to concede to the State’s
opposition.
                         HALL V. HAWS                           11

    On May 22, 2012, the district court appointed counsel for
Hall because “a denial of Hall’s motion under Rule 60(b) may
raise significant due process issues.” With the assistance of
counsel, Hall filed a motion for relief from judgment under
Rule 60(b). Hall argued that applying the district court’s May
19, 2006 judgment dismissing his petition prospectively was
no longer equitable under Rule 60(b)(5), and that
extraordinary circumstances existed under Rule 60(b)(6).

    The district court granted Hall’s motion under Rule
60(b)(6), finding that extraordinary circumstances—an
intervening change in law, i.e., Sherrors v.
Woodford—warranted relief from judgment. The district
court then concluded that habeas relief was warranted based
on the erroneous instruction of CALJIC 2.15. The State
appealed both the grant of Rule 60(b)(6) relief and habeas
relief.

                        DISCUSSION

I. Rule 60(b) Motion

      A district court’s grant of relief from judgment under
Federal Rule of Civil Procedure Rule 60(b) is reviewed for
abuse of discretion. Casey v. Albertson’s, Inc, 362 F.3d 1254,
1257 (9th Cir. 2004). “A district court abuses its discretion
if it does not apply the correct law or if it rests its decision on
a clearly erroneous finding of material fact.” Id. Any
questions of law underlying the district court’s decision are
reviewed de novo. Jeff D. v. Kempthorne, 365 F.3d 844,
850–51 (9th Cir. 2004).
12                            HALL V. HAWS

    Under Rule 60(b), a district court may relieve a party
from a final judgment in certain circumstances.2 Fed. R. Civ.
P. 60(b). In the habeas context, Rule 60(b) applies to the
extent that it is not inconsistent with the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”). Gonzalez v.
Crosby, 545 U.S. 524, 529 (2005) (citing 28 U.S.C. § 2254
Rule 11 and Fed. R. Civ. P. 81(a)(2)). AEDPA poses
significant hurdles for a Rule 60(b) petitioner, but “Rule
60(b) has an unquestionably valid role to play in habeas
cases.” Gonzalez, 545 U.S. at 534.




     2
       The district court may relieve a party from a final judgment for the
following reasons:

         (1) mistake, inadvertence, surprise, or excusable
         neglect;

         (2) newly discovered evidence that, with reasonable
         diligence, could not have been discovered in time to
         move for a new trial under Rule 59(b);

         (3) fraud (whether previously called intrinsic or
         extrinsic), misrepresentation, or misconduct by an
         opposing party;

         (4) the judgment is void;

         (5) the judgment has been satisfied, released or
         discharged; it is based on an earlier judgment that has
         been reversed or vacated; or applying it prospectively
         is no longer equitable; or

         (6) any other reason that justifies relief.

Fed. R. Civ. P. Rule 60(b).
                       HALL V. HAWS                         13

    The State argues that Hall’s Rule 60(b) motion runs afoul
of three of AEDPA’s provisions: (1) the bar on second or
successive petitions under 28 U.S.C. § 2244(b)(1); (2) the
one-year statute of limitations under 28 U.S.C. § 2244(d); and
(3) the exhaustion rule under 28 U.S.C. § 2254(b). In
addition, the State argues that the district court abused its
discretion by granting relief under Rule 60(b)(6). For the
reasons discussed below, we disagree.

   A. AEDPA’s Bar on Second or Successive Petitions

    Under AEDPA’s second or successive petition provisions,
any claim that has been adjudicated in a previous petition
must be dismissed. 28 U.S.C. § 2244(b)(1). The State argues
that Hall’s Rule 60(b) motion is a disguised successive
habeas petition that asserts a previously adjudicated claim
and therefore the district court should have dismissed it
pursuant to § 2244(b)(1).

    While there is no bright-line rule for distinguishing
between a bona fide Rule 60(b) motion and a disguised
second or successive habeas petition, the Supreme Court’s
decision in Gonzalez v. Crosby informs our analysis. See
Jones v. Ryan, 733 F.3d 825, 834 (9th Cir. 2013). In
Gonzalez, the district court dismissed Gonzalez’s habeas
petition as untimely, and the Eleventh Circuit Court of
Appeals denied a certificate of appealability. 545 U.S. at 527.
After a change in law regarding the statute of limitations,
Gonzalez filed a Rule 60(b) motion challenging the district
court’s dismissal. Id. Both the district court and the Eleventh
Circuit ruled that Gonzalez could not seek Rule 60(b) relief
because the motion was a disguised second or successive
petition. Id. at 528. The Supreme Court disagreed. The
Court held that Gonzalez’s Rule 60(b) motion challenged the
14                     HALL V. HAWS

district court’s earlier ruling on a non-merits aspect of the
proceedings—statute of limitations—and therefore it was not
equivalent to a successive habeas petition. Id. at 533–34.

     Thus, according to Gonzalez, a bona fide Rule 60(b)
motion “attacks, not the substance of the federal court’s
resolution of a claim on the merits, but some defect in the
integrity of the federal habeas proceedings.” Id. at 532. In
contrast, a second or successive habeas corpus petition “is a
filing that contains one or more ‘claims,’” defined as
“asserted federal bases for relief from a state court’s
judgment of conviction.” Id. Put another way, “if neither the
motion itself nor the federal judgment from which it seeks
relief substantively addresses the federal grounds for setting
aside the movant’s state conviction, allowing the motion to
proceed as denominated creates no inconsistency with the
habeas statute or rules.” Id. at 533.

    Hall’s motion conforms to Gonzalez’s description of a
true Rule 60(b) motion. First, the federal judgment from
which Hall seeks relief—the order dismissing his petition for
failure to comply with the district court’s July 25, 2006
exhaustion order—does not substantively address the federal
grounds for setting aside his conviction. The dismissal was
based on Hall’s failure to comply with the district court’s
exhaustion order; it was a non-merits-based ruling. Second,
Hall’s Rule 60(b) motion only explains the circumstances
why his original petition was dismissed, i.e. that Hall failed
to comply with the court’s exhaustion order because he
believed he had co-submitted another habeas petition with
Sherrors. Hall’s motion to reopen does not present any
substantive ground for setting his conviction aside.
Therefore, because neither the district court’s dismissal nor
Hall’s motion to reopen address the merits for setting Hall’s
                           HALL V. HAWS                               15

conviction aside, allowing the motion to proceed is not
inconsistent with AEDPA. Id. at 533.

     Our conclusion is further supported by this court’s
decision in Butz v. Mendoza-Powers, 474 F.3d 1193 (9th Cir.
2007) (per curiam). In Butz, Petitioner Butz applied for
authorization to file a second or successive habeas petition
under 28 U.S.C. § 2254 after his original petition was
correctly dismissed for failure to pay the filing fee. 474 F.3d
at 1194. Butz claimed that his first petition had been
dismissed due to neglect by his prior counsel, despite Butz’s
own diligence. Id. This court held that when “the district
court dismisses the [habeas] petition for failure to pay the
filing fee or to comply with the court’s orders, the district
court does not thereby reach the ‘merits’ of the claims
presented in the petition and a Rule 60(b) motion challenging
the dismissal is not treated as a second or successive
petition.” Id. (emphasis added). Like in Butz, Hall “does not
seek to add new claims to his petition or to adduce new
evidence or cite new law in support of claims previously
adjudicated on the merits.” Id. at 1195. Like in Butz, Hall
simply failed to comply with the court’s order and, as a result,
his petition was dismissed. Like in Butz, we conclude that the
district court’s dismissal of the petition does not preclude
Hall from filing a Rule 60(b) motion. See id. (“Because a
Rule 60(b) motion by Butz would not be the equivalent of a
second or successive habeas petition, his application for
authorization to file such a petition is unnecessary.”).3


    3
      The State attempts to distinguish Butz by pointing out that Butz (1)
arose from a gatekeeping motion filed under 28 U.S.C. § 2244(b)(3)(A);
and (2) concerned a procedural dismissal with prejudice rather than a
dismissal without prejudice. Nothing in Butz suggests that its holding was
limited to gatekeeping motions or dismissals with prejudice and the State
16                          HALL V. HAWS

   In sum, we agree with the district court that Hall’s Rule
60(b) motion is a true Rule 60(b) motion and does not run
afoul of AEDPA’s bar against second or successive petitions.

     B. AEDPA’s Statute of Limitations

    The State argues that even if Hall’s Rule 60(b) motion
were a true Rule 60(b) motion (meaning it did not raise a
“claim” within the meaning of Gonzalez), it is still an
“application” for relief to which the district court was
required to apply AEDPA’s statute of limitations before
considering any of the discretionary provisions contained in
Rule 60(b).4 We reject this contention. As the Supreme
Court made clear in Gonzalez, an “‘application’ for habeas
relief is a filing that contains one or more ‘claims.’”
Gonzalez, 545 U.S. at 530. Because Hall’s Rule 60(b) motion
did not contain any “claim,” supra I.A.1, it is not an
application for habeas relief, and therefore AEDPA’s statute
of limitations does not apply See id. at 533 (“[W]hen no
‘claim’ is present, there is no basis for contending that the
Rule 60(b) motion should be treated like a habeas corpus
application.”).


has offered no argument as to why these two facts were crucial to the
court’s decision.
     4
       The State, relying on a footnote from Gonzalez, believes Hall’s Rule
60(b) motion to be an “application” because the district court’s dismissal
of Hall’s original petition rested on a correct ruling rather than an
erroneous ruling. In this Gonzalez footnote, the Court further explained
the term “on the merits,” stating that a habeas petitioner does not make a
“claim” when he “merely asserts that a previous ruling which precludes
a merits determination was in error.” Gonzalez v. Crosby, 545 U.S. 529,
532 n.4 (2005). The footnote simply provided an example of when a
claim exists; it was not intended as the definition of a claim.
                        HALL V. HAWS                         17

   C. Exhaustion under AEDPA

    In its reply brief, the State argues that Hall’s petition
contained an unexhausted claim both before the dismissal and
after the district court granted relief under Rule 60(b), and
therefore, the use of Rule 60(b) to reopen Hall’s case is
inconsistent with AEDPA.

    It is true that Hall initially presented an unexhausted
claim in his habeas petition, which prompted the district court
to order Hall to either voluntary dismiss the entire petition or
formally abandon the unexhausted claim. Hall requested an
extension to file a formal abandonment, signaling a desire to
proceed with the second option. When Hall contacted the
district court again on May 29, 2009 with the intent to “join”
his co-defendant’s successful habeas petition, Hall mentioned
only the CALJIC 2.15 claim, which Hall had already
exhausted in state court in 2003. Hall did not mention the
unexhausted claim. The district court, liberally construing
this pro se petitioner’s motion, interpreted Hall’s motion to
join as a “motion to reopen his Petition for Writ of Habeas
Corpus filed in this case on January 3, 2005 and to proceed
on the exhausted first and third claims for relief.” In other
words, the district court interpreted Hall’s motion to join as
both a motion to reopen and a formal abandonment of the
second unexhausted claim. This was a fair and logical
interpretation of Hall’s motion given the procedural history
of the case. As noted above, Hall had previously indicated a
desire to abandon the unexhausted claim. His “motion to
join” confirmed this desire. Given that no unexhausted claim
was presented or considered, we find no inconsistency with
AEDPA.
18                         HALL V. HAWS

     D. Relief under Rule 60(b)(6)

    As stated above, Rule 60(b) “allows a party to seek relief
from a final judgment, and request reopening of his case,
under a limited set of circumstances.” Gonzalez, 545 U.S. at
528. Rule 60(b)(6), the provision under which Hall brought
his motion, permits reopening for “any . . . reason that
justified relief” other than the enumerated reasons set forth in
Rule 60(b)(1)–(5).5 Fed. R. Civ. P. 60(b). A movant seeking
relief under Rule 60(b)(6) must show “extraordinary
circumstances justifying the reopening of a final judgment.”
Gonzalez, 545 U.S. at 535. Although such circumstances
occur rarely in the habeas context, Rule 60(b)(6) can and
should be “used sparingly as an equitable remedy to prevent
manifest injustice.” United States v. Alpine Land &
Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993).

    “[T]he decision to grant Rule 60(b)(6) relief is a case-by-
case inquiry that requires the trial court to intensively balance
numerous factors, including the competing policies of the
finality of judgments and the incessant command of the
court’s conscience that justice be done in light of all the
facts.” Phelps v. Alameida, 569 F.3d 1120, 1133 (9th Cir.
2009) (quoting Stokes v. Williams, 475 F.3d 732, 736 (6th
Cir. 2007)). In applying Rule 60(b)(6) in habeas cases, we
have considered six factors described in Phelps v. Alameida:
(1) a showing of extraordinary circumstances, such as a
change in intervening law; (2) the petitioner’s exercise of
diligence in pursuing the issue during federal habeas


     5
      Before the district court, Hall also argued for relief under Rule
60(b)(5). The district court did not grant relief under Rule 60(b)(5) and
Hall does not argue that it applies now. Therefore, we do not address
whether relief under Rule 60(b)(5) would have been appropriate.
                        HALL V. HAWS                         19

proceedings; (3) interest in finality; (4) delay between the
finality of the judgment and the motion for Rule 60(b)(6)
relief; (5) degree of connection between the extraordinary
circumstance and the decision for which reconsideration is
sought; and (6) comity. See id. at 1135–40. But we have
stated that these factors are not “a rigid or exhaustive
checklist.” Id. at 1135. Rather, “Rule 60(b)(6) is a grand
reservoir of equitable power, and it affords courts the
discretion and power to vacate judgments whenever such
action is appropriate to accomplish justice.” Id. (internal
citations and quotation marks omitted).

    This is an especially unique case in which a perfect storm
produced a situation in which Hall would have been subject
to “manifest injustice” if not for Rule 60(b)(6). See Alpine
Land & Reservoir Co., 984 F.2d at 1049. Most notably, this
case involves a petitioner whose habeas petition was
dismissed without reaching the merits of his claim, while his
co-defendant was granted habeas relief on the same claim
based on the same error from the same trial. Given these key
facts, Hall’s motion for relief under Rule 60(b)(6) is based on
more than just a plea that a misunderstanding occurred.
These extraordinary circumstances are the reason for Hall’s
failure to comply with the district court’s January 25, 2006
order, and therefore, the reason his petition was dismissed.
We cannot say that the district court was wrong in
recognizing that extraordinary circumstances warrant the
reopening of Hall’s case here. See Buck v. Davis, 137 S. Ct.
759, 778 (2017) (“In determining whether extraordinary
circumstances are present, a court may consider a wide range
of factors,” including “the risk of injustice to the parties.”).
20                         HALL V. HAWS

    Moreover, we cannot find fault with the district court’s
determination that Hall proceeded diligently or that the delay
between the dismissal of Hall’s petition and the filing of his
motion to reopen was reasonable. We have said that
reasonable diligence “does not require an overzealous or
extreme pursuit of any and every avenue of relief;” instead,
it “requires the effort that a reasonable person might be
expected to deliver under his or her particular circumstances.”
Brooks v. Yates, 818 F.3d 532, 535 (9th Cir. 2016) (quoting
Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011)). Hall, a
pro se litigant,6 relied on his co-defendant’s assurances that
his claims were being advanced in the co-defendant’s
proceedings. The California Court of Appeal and the
California Supreme Court adjudicated Hall’s case in
conjunction with that of his co-defendant’s. With this in
mind, and having great familiarity with the procedural history
and circumstances of this case, the district court concluded
that Hall was diligent and his delay was reasonable.

    Further, we disagree with the State’s contention that the
district court “minimized” the State’s interests in finality and
comity. In Sherrors, this court ruled that the very same trial
and resulting conviction was constitutionally compromised.
The State could not in good faith argue reliance on the
finality of Hall’s conviction because there had been no
finality for Sherrors, Hall’s co-defendant. Accordingly, the
State’s interest in finality deserved “little weight.” Cf. Buck,
137 S. Ct. at 779 (noting that the State’s interest in finality
“deserve[d] little weight” where the State acknowledged error


     6
      When Hall filed his original federal habeas petition on January 3,
2005, he was pro se. Later on, on March 12, 2012, the district court
appointed counsel to assist Hall in reopening his habeas proceedings under
Rule 60(b).
                        HALL V. HAWS                         21

in similar cases). Similarly, the State cannot argue that a
second retrial will harm and prejudice the State. The State
received this court’s decision affirming the grant of habeas
relief in Sherrors v. Woodford on March 31, 2011.
Thereafter, it chose to oppose Hall’s motion to join on
December 12, 2011. Had the State truly been concerned with
efficiency, it could have opted to retry Sherrors and Hall
together in lieu of its opposition to the motion to join and
subsequent appeal.

   For these reasons, we affirm the district court’s grant of
Rule 60(b) relief to Hall.

II. Habeas Relief

   A. AEDPA Review of the State Court’s Instructional
      Error Determination

    We review a district court’s decision on a petition for writ
of habeas corpus de novo. Deck v. Jenkins, 814 F.3d 954,
978 (9th Cir. 2016). Because Hall’s petition is governed by
AEDPA, Hall can prevail on a claim that was adjudicated on
the merits in state court only if he can show that the
adjudication:

       (1) resulted in a decision that was contrary to,
       or involved an unreasonable application of,
       clearly established Federal law, as determined
       by the Supreme Court of the United States; or
22                         HALL V. HAWS

         (2) resulted in a decision that was based on an
         unreasonable determination of the facts in
         light of the evidence presented in the State
         court proceeding.

28 U.S.C. § 2254(d).

    Under the “contrary to” clause, a federal habeas court
may grant habeas relief if the state court arrives at a
conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362,
412–13 (2000). Under the “unreasonable application” clause,
a federal court may grant habeas relief if the state court
identifies the correct governing legal principle from the
Supreme Court’s decisions but unreasonably applies that
principle to the facts of the petitioner’s case. Id.

    On direct appeal in Hall’s case, the California Court of
Appeal determined that it was error to instruct the jury on
CALJIC 2.15, but affirmed Hall’s conviction, concluding that
the error was harmless. In doing so, the California Court of
Appeal did not find the error to be of constitutional
magnitude, and consequently applied the harmless error
standard set forth in People v. Watson.7 As discussed below,

     7
      The Watson standard is used to review non-constitutional, trial type
errors. Watson requires a reviewing court to determine whether “it is
reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” 46 Cal. 2d 818, 836
(1956). In contrast, the more stringent standard, under Chapman v.
California, is used to review errors of constitutional magnitude, which
requires a reviewing court to decide whether the error was “harmless
beyond a reasonable doubt.” 386 U.S. 18, 24 (1967).
                             HALL V. HAWS                                 23

the California Court of Appeal’s decision was an
unreasonable application of clearly established federal law.

    The Supreme Court has stated that the Due Process
Clause of the Fourteenth Amendment “protects the accused
against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with
which he is charged.” Francis v. Franklin, 471 U.S. 307, 313
(1985) (quoting In re Winship, 397 U.S. 358, 364 (1970)).
“This bedrock, axiomatic and elementary constitutional
principle prohibits the State from using evidentiary
presumptions in a jury charge that have the effect of relieving
the State of its burden of persuasion beyond a reasonable
doubt of every essential element of a crime.” Id. (internal
quotation marks, citations, and alternations omitted).

    In this case, the State used CALJIC 2.15,8 a jury charge
that allows, but does not require, a jury to infer a specified
conclusion if the government has proved certain predicate
facts, also known as a permissive inference. Schwendeman
v. Wallenstein, 971 F.2d 313, 316 (9th Cir. 1992). “A
permissive inference violates the Due Process Clause only if

    8
      As a reminder, CALJIC 2.15 states: If you find that a defendant was
in possession of recently stolen property, the fact of that possession is not
by itself sufficient to prove an inference that the defendant is guilty of the
crime of murder. Before guilt may be inferred, there must be
corroborating evidence tending to prove a defendant’s guilt. However,
this corroborating evidence need only be slight and need not by itself be
sufficient to warrant an inference of guilt.

     As corroboration, you may consider the attributes of possession, time,
place and manner; that the defendant had an opportunity to commit the
crime charged; the defendant’s conduct; his false or contradictory
statements, if any; and any other statements that may have been made with
reference to the property.
24                          HALL V. HAWS

the suggested conclusion is not one that reason and common
sense justify in light of the proven facts before the jury.”
Francis, 471 U.S. at 314; see also Cty. Court of Ulster Cty. v.
Allen, 442 U.S. 140, 156–57, 165 (1979) (explaining that a
lack of “rational connection” between the presumed fact and
the proven facts would render such a permissive inference
invalid under the Due Process Clause). Put another way, “[a]
permissive inference is constitutional so long as it can be said
‘with substantial assurance’ that the inferred fact is ‘more
likely than not to flow from the proved fact on which it is
made to depend.’” United States v. Rubio-Villareal, 967 F.2d
294, 296 (9th Cir. 1992) (en banc) (quoting Ulster Cty.,
442 U.S. at 166 n.28).

    In People v. Prieto, the California Supreme Court held
that use of CALJIC 2.15 in nontheft offenses is improper
because “[p]roof a defendant was in conscious possession of
recently stolen property simply does not lead naturally and
logically to the conclusion the defendant committed a rape or
murder.” 30 Cal. 4th 226, 249 (2003) (emphasis added)
(internal quotations omitted) (quoting People v. Barker,
91 Cal. App. 4th 1166, 1176 (2001)). Here, the California
Court of Appeal, relying on Prieto, held that it was error to
instruct the jury on CALJIC 2.15. The California Court of
Appeal failed to recognize, however, that the instructional
error was of constitutional magnitude.9


     9
      California courts have disagreed that this instructional error is of a
constitutional magnitude. See, e.g., People v. Hayes, No. D060781, 2013
WL 3187230, at *20 (Cal. Ct. App. June 25, 2013) (unpublished) (“Our
Supreme Court has repeatedly held that the Watson standard applies in this
context, and has expressly rejected the contention that the error in question
is one of constitutional magnitude.” (internal citations omitted)); People
v. Moore, 51 Cal. 4th 1104, 1132–33 (2011) (applying the Watson
                          HALL V. HAWS                             25

    Under clearly established Supreme Court law, the trial
court violated Hall’s federal due process rights by instructing
the jury that it could presume Hall murdered Foth from the
fact that Hall possessed Foth’s property (plus “slight”
corroborating evidence) because the presumed fact does not
follow from the facts established. See Francis, 471 U.S. at
314–15; Ulster Cty., 442 U.S. 156–57. Although the Prieto
court did not expressly discuss federal due process, Prieto
relied on People v. Barker, which does discuss it, and Prieto
used the same sort of language that the Supreme Court used
in Francis and Ulster County to describe when a permissive
inference jury instruction is unconstitutional. An inference
that is not“natural[] or logical[],” as Prieto described, is
exactly the kind of inference not justified by “reason or
common sense,” see Francis, 471 U.S. at 314, and not
“flow[ing] from the proved fact,” see Ulster Cty., 442 U.S. at
166 n.28.

    The dissent asserts that the instructional error in this case
is only one of state law because Prieto never says that the
permissive inference from CALJIC 2.15 is “irrational.”
Dissent at 41–42. But this overly critical argument about
word choice misses the point. Francis never uses the word
“irrational.” And while Ulster County refers to a “rational
connection” between inferred fact and proved fact, 442 U.S.
at 156–57, it also explains that whether “the presumed fact is
more likely than not to flow from the proved fact” is how we
determine whether a permissive inference is constitutional.
442 U.S. at 166 n.28. Ultimately, the seminal Supreme Court
cases on this issue all say the same thing: a permissive
inference violates due process when the presumed fact does


standard and reasoning that Prieto does not mean “drawing a connection
between possession and guilt is irrational”). We disagree.
26                          HALL V. HAWS

not follow from the facts established. See Francis, 471 U.S.
at 314–15; Ulster Cty., 442 U.S. at 166 n.28.

    The relevant inquiry to determine whether the
instructional error was of constitutional magnitude is whether
the suggested conclusion—that Hall murdered Foth—is one
that reason and common sense justify in light of the proved
fact that Hall was in possession of Foth’s ring some time after
Foth was killed. Proof that Hall possessed Foth’s ring does
not make it “more likely than not” that Hall murdered Foth.
The use of CALJIC 2.15 in this case constitutes an
instructional error of constitutional magnitude, and the
California Court of Appeal’s determination otherwise was
objectively unreasonable. See Ulster Cty., 442 U.S. at 166.10


     10
       The dissent argues that the California Court of Appeal did not
address Hall’s claim that the jury instruction violated the federal
constitution, so there is no reasoned decision on that claim. Accordingly,
the dissent contends that we should use the gap-filling approach from
Harrington v. Richter, 562 U.S. 86 (2011), which applies when there is no
reasoned decision on a particular claim. We disagree and note that
throughout the lengthy litigation of this case, the State never has taken the
position that Harrington applies.

     The Harrington gap-filling approach applies when the state court fails
to set forth any reasoning for denying a claim. That is not the case here.

    In Hall’s brief to the California Court of Appeal, he argued that use
of CALJIC 2.15 violated due process. Although the dissent contends that
the California Court of Appeal addressed only why the use of CALJIC
2.15 was an error of state law, the Court of Appeal’s opinion also included
grounds for rejecting Hall’s constitutional argument. The California Court
of Appeal relied on Prieto, which in turn relies on Barker, a case that
discusses when a permissive inference instruction comports with due
process. People v. Barker, 91 Cal. App. 4th 1166, 1174 (2001). These
cases provide enough insight into the state court’s reasoning for rejecting
Hall’s constitutional claim.
                            HALL V. HAWS                                27

    B. Brecht Harmless Error Review

    But the inquiry does not end the conclusion that the state
court’s decision was unreasonable in finding no constitutional
violation. Habeas relief on a trial error claim is appropriate
only if the error results in “actual prejudice.” Davis v. Ayala,
135 S. Ct. 2187, 2197 (2015) (quoting Brecht v. Abrahamson,
507 U.S. 619, 637 (1993)). Under the Brecht test for actual
prejudice, “relief is proper only if the federal court has ‘grave
doubt about whether a trial error of federal law had
substantial and injurious effect or influence in determining
the jury’s verdict.’” Mays v. Clark, 807 F.3d 968, 980 (9th
Cir. 2015) (quoting Ayala, 135 S. Ct. at 2197–98).

    The Brecht standard is so stringent that it “subsumes” the
AEDPA/Chapman standard for review of a state court
determination of the harmlessness of a constitutional
violation. Deck v. Jenkins, 814 at 954, 985 (quoting Fry v.
Pliler, 551 U.S. 112, 120 (2007)). We need not apply both a
Brecht review and an AEDPA/Chapman review because “[a]
determination that the error resulted in ‘actual prejudice’
[under Brecht] necessarily means that the state court’s
harmless error determination was not merely incorrect, but
objectively unreasonable.” Id.




     Regardless, even if we applied the gap-filling approach from
Harrington, we would still hold that the result reached by the California
Court of Appeal was unreasonable. The hypothetical “arguments or
theories” that could have supported the denial of relief are, as the dissent
suggests, that the permissive inference in CALJIC 2.15 is not “irrational”
so it cannot amount to a violation of due process, or that the instruction
was harmless even under Chapman. We have addressed those arguments
in the body of our opinion.
28                      HALL V. HAWS

    Even if we were to separately analyze the state court’s
harmless error determination under AEDPA/Chapman before
engaging in a separate Brecht analysis, we would find that the
California Court of Appeal’s harmless error determination
was objectively unreasonable.          As discussed above,
instructing the jury on CALJIC 2.15 violated Hall’s due
process rights, and therefore harmless error should have been
analyzed under the Chapman standard for constitutional
violations. See Chapman v. California, 386 U.S. 18, 23–24
(1967) (holding that a “harmless beyond a reasonable doubt”
standard applies to constitutional trial type errors). It was an
unreasonable application of clearly established federal law for
the California Court of Appeal to evaluate Hall’s claim under
the less stringent Watson standard.

    Our Brecht analysis also reveals that the state court’s
harmless error determination was unreasonable because the
instructional error resulted in actual prejudice. Like the two
magistrate judges, the two district court judges, and another
panel majority of our court that have reviewed this trial error
under Brecht, we have “grave doubts” about whether the jury,
without having heard the erroneous CALJIC 2.15 instruction,
would have found Hall guilty beyond a reasonable doubt.
The State’s case against Hall relied overwhelmingly on the
testimony of Lena Hixon, whose story changed numerous
times before trial and whose statements under oath were
contradicted by the objective evidence at trial and by the
other witnesses.

    First, it is nearly impossible to believe Hixon’s testimony
of the timeline of events given the judicially noticed distance
between the different locations where each event allegedly
took place. Second, Hixon lied about using and possessing
Foth’s property. She testified that she never saw, touched, or
                       HALL V. HAWS                         29

took any of Foth’s property or used Foth’s cell phone. But
phone records showed that days after the murder, Hixon used
Foth’s phone to call a customer and her fingerprints were
found on some of Foth’s belongings. In addition, months
after the crime, a woman by the name of Mikiisha Perine
found incriminating items among those she was storing on
behalf of Hixon’s boyfriend, Michael Washington. Perine
found a blue purse containing Hixon’s social security card,
Ko’s Visa and Costco cards, Foth’s ATM card, and three of
Foth’s business cards. Third, Hixon downplayed her own
involvement in the crimes. Initially, Hixon denied ever
stabbing Foth. Then, she told police that she did stab Foth
once, but that Sherrors forced her to stab Foth. Then, she told
fellow inmate Katherine Davis that she used her shirt over the
knife to avoid leaving fingerprints and that she was surprised
at how the knife felt as it went into the body. In addition,
Hixon testified that she broke a fingernail when Sherrors
grabbed her at the crime scene, but later she told Davis she
broke it while she was holding Foth down or helping drag his
body. Lastly, Hixon lied or changed her story regarding
several other details of the night of the murder. Most notably,
Hixon first identified two other men as the killers, but later
pointed her finger at Sherrors and Hall. She also told police
that Foth approached her for cocaine, but she told Davis that
Foth approached her for sex. She also testified that a shirt
found at the crime scene belonged to Sherrors, but forensic
testing eliminated Sherrors, Hall, and Hixon as habitual
wearers of the shirt.

     Given these non-trivial inconsistencies, the jury could
have disbelieved Hixon entirely. After all, she had a motive
to lie; she was offered a plea agreement in exchange for her
testimony against Sherrors and Hall. Aside from Hixon, the
only other evidence against Hall was his possession of Foth’s
30                          HALL V. HAWS

ring and his presence as a passenger in the Audi. No physical
evidence linked Hall to the murder.

    CALJIC 2.15 invited and encouraged the jury to infer that
Hall was guilty of murder from his possession of Foth’s ring
plus “slight” corroborating evidence. The instruction defined
“slight” corroborating evidence as the “attributes of
possession (time, place and manner), opportunity to commit
the crime, and defendant’s conduct.” This allowed the jury
to infer that Hall committed the murder based on the “time,
place, and manner” of his possession; in other words, the jury
may have been encouraged to infer that Hall committed the
murder based on the mere fact that he was in possession of
the ring and a passenger in the Audi in the days after the
murder. As already discussed, such an inference is illogical
and improper. Because Hixon’s testimony was unbelievable
and because of the lack of other evidence linking Hall to the
murder, we have grave doubts about whether the jury would
have found Hall guilty beyond a reasonable doubt without the
unconstitutional permissive instruction.11


     11
        This court previously drew this conclusion in the case of Hall’s co-
defendant, Sherrors. See Sherrors v. Woodford, 425 F. App’x 617 (9th
Cir. 2011). Though Sherrors is an unpublished memorandum disposition
that is not binding on us, it is quite persuasive because the analysis arose
from the very same trial. In fact, the State concedes that it assumed that
our decision in Sherrors would be binding and that “if it were not for
Johnson v. Williams, the State may not have taken this appeal.” We
disagree that Johnson changes the result in this case.

     In Johnson, the Supreme Court held that when a state court addresses
some, but not all, of a defendant’s claims, the federal court on habeas
review must presume, subject to rebuttal, that the unaddressed claims were
adjudicated on the merits, thereby warranting AEDPA deference. 133 S.
Ct 1088, 1091 (2013). Our decision in Sherrors was consistent with this.
In Sherrors, we applied AEDPA deference and concluded that the
                            HALL V. HAWS                                31

                          CONCLUSION

    We conclude that Hall’s Rule 60(b) motion was not
inconsistent with AEDPA’s bar on second or successive
petitions, AEDPA’s statute of limitations, or AEDPA’s
exhaustion requirement. The district court did not err in
reviewing Hall’s Rule 60(b) motion and it did not abuse its
discretion in reopening Hall’s case under Rule 60(b)(6).
Further, we conclude that habeas relief is warranted.
Therefore, we AFFIRM the district court’s order granting
Hall’s motion to reopen under Rule 60(b) and we AFFIRM
the district court’s order that conditionally granted the First
Amended Petition for Writ of Habeas Corpus unless the State
grants Petitioner a new trial within 90 days from the date of
this opinion.

    AFFIRMED.




California Court of Appeal unreasonably applied established Supreme
Court precedent when it “failed to recognized that the instructional error
was of constitutional magnitude.” Sherrors, 425 F. App’x at 619. The
State misinterprets the intent of this sentence. We were not saying that the
California Court of Appeal failed to address the instructional error claim.
We were saying that its failure to find a constitutional violation was
unreasonable. And we say the same here.
32                      HALL V. HAWS

CALLAHAN, Circuit Judge, dissenting:

    I agree with the majority that this case is “rare and
extraordinary for the reasons it cites. What is extraordinary is
that this court repeats the error of Sherrors v. Woodford,
425 F. App’x 617 (9th Cir. 2011), which granted the habeas
petition of Hall’s co-defendant Ronnie Sherrors based on the
same supposed instructional error, even in the face of
additional facts demonstrating that Sherrors was wrongly
decided. Sherrors was retried without the suspect instruction
and, unsurprisingly, was again convicted of first degree
murder and sentenced to life imprisonment without the
possibility of parole. People v. Sherrors, 2014 WL 6907990,
at *1 (Cal. Ct. App. Dec. 9, 2014). In granting Hall’s
petition, the court not only ignores this reality, but invents an
error of constitutional magnitude where none exists. To be
sure, the instructional error Hall claims is an error of state law
only. In finding a due process violation warranting habeas
relief, the majority brushes aside the AEDPA standards and
the Supreme Court’s repeated instructions that we must defer
to reasonable state court decisions. See, e.g., Davis v. Ayala,
135 S. Ct. 2187, 2199, reh’g denied, 136 S. Ct. 14 (2015).
The weighty evidence against Hall only underscores the
extent to which the majority contrives to reach its result.

    Nor is Hall deserving of relief under Rule 60(b). Hall
knowingly caused his own petition to be dismissed, and, of
his own accord, failed to take any action on that dismissed
federal habeas petition for three years. Indeed, he waited
until after Sherrors procured habeas relief before seeking
leave to reopen his own case. The state explained at oral
argument that, because Hall had clearly abandoned his own
efforts to pursue habeas relief, he was not retried with
Sherrors. Reopening his case impermissibly rewards his
                       HALL V. HAWS                       33

inaction and gamesmanship, and unfairly imposes the cost of
his retrial on the state.

   I therefore respectfully dissent.

                              I

   Hall and Sherrors stole a car that Steve Foth was driving.
They forced Foth into the trunk of the car and drove out to a
dark street. There, accompanied by Lena Hixon, they pulled
Foth out of the trunk and began stabbing him. Foth sustained
approximately eighty-three stab wounds and bled to death.
Hall and Sherrors stripped Foth’s body naked, discarded it in
some bushes, and drove away.

    Hall and Sherrors were tried and convicted in state court
of first degree murder while using a deadly weapon, and with
the special circumstance of murder during the course of a
robbery. At trial, the jury was instructed with CALJIC No.
2.15, which states:

       If you find that a defendant was in possession
       of recently stolen property, the fact of that
       possession is not by itself sufficient to prove
       an inference that the defendant is guilty of the
       crime of murder. Before guilt may be inferred,
       there must be corroborating evidence tending
       to prove a defendant’s guilt. However, this
       corroborating evidence need only be slight
       and need not by itself be sufficient to warrant
       an inference of guilt.
34                     HALL V. HAWS

       As corroboration, you may consider the
       attributes of possession—time, place and
       manner; that the defendant had an opportunity
       to commit the crime charged; the defendant’s
       conduct; his false or contradictory statements,
       if any; and any other statements that may have
       been made with reference to the property.

Each defendant received a sentence of life without the
possibility of parole, plus one year.

    Hall appealed the judgment to the California Court of
Appeal, which affirmed the judgment in an unpublished
decision. The Court of Appeal assessed whether it was error
to have instructed the jury pursuant to CALJIC No. 2.15, but
assessed this error under the harmless error test of People v.
Watson, 46 Cal. 2d 818 (1956), California’s state-law
harmless error standard, rather than the constitutional
harmless error test of Chapman v. California, 386 U.S. 18
(1967). The Court of Appeal concluded that it was an error of
state law, but that error was harmless. The opinion did not
touch on Hall’s federal due process claim. Hall then filed a
petition for review in the California Supreme Court, arguing
that the Court of Appeal erred by applying Watson rather than
Chapman. The California Supreme Court summarily denied
the petition.

     In 2005, Hall filed a Petition for Writ of Habeas Corpus
in the district court pursuant to 28 U.S.C. § 2254, challenging
his conviction. He then filed a First Amended Petition which
raised not only his claim related to CALJIC No. 2.15, but also
an additional claim related to a different jury instruction,
CALJIC No. 8.81.17. When the state moved to dismiss the
petition on the ground that the claim related to CALJIC No.
                        HALL V. HAWS                         35

8.81.17 was unexhausted, Hall requested that the district
court stay his case so that he could present his unexhausted
claim to the state courts. This request was denied. The district
court advised Hall that he could either “voluntarily dismiss
his entire federal petition and return to state court to exhaust
his unexhausted claims,” or “formally abandon his
unexhausted claim and proceed with his exhausted claims.”
Hall was explicitly informed by the district court that if he
chose to proceed with his exhausted claims, “he must file a
pleading entitled ‘Formal Abandonment of Unexhausted
Claim’ with this Court no later than 30 days after the District
Judge issues his decision.” The district court informed Hall
that he was “presented with the options stated above to avoid
dismissal of his petition.” Hall requested an extension of
time to file a formal abandonment of his unexhausted claim,
which was granted. But Hall never submitted a notice of
formal abandonment or any other filing in response to the
district court’s order. Hall’s mixed petition was therefore
dismissed without prejudice and the case was terminated.

    Hall’s co-defendant Sherrors also filed a Petition for Writ
of Habeas Corpus in 2005, challenging his own conviction.
In May 2007, well after the dismissal of Hall’s petition, the
district court conditionally granted the writ, and the state
appealed that decision. It was not until almost two years
later—and over three years after the district court’s dismissal
of Hall’s petition—that Hall filed a “Motion to Join Case of
Co-Defendant” in the district court. The district court treated
this filing as a motion to reopen Hall’s original habeas
petition. The district court deemed “consideration of the
matter” premature while the decision granting Sherrors’s
petition was on appeal, and denied the motion “without
prejudice to refile the motion once the Court of Appeals for
the Ninth Circuit issues a final decision in Sherrors’s habeas
36                      HALL V. HAWS

case.” When the Ninth Circuit affirmed the district court’s
decision to grant Sherrors’s petition in 2011, Sherrors, 425 F.
App’x 617; see also id. at *3 (Callahan, J., dissenting), Hall
filed a “Motion to Join Case of Co-Defendant; Motion to Re-
Open Case of Hall v. B. Cash” in the district court, seeking
relief under Rule 60. The state opposed the motion,
contending that Hall should be required to file a new petition.
Hall, at that point proceeding pro se, filed a reply indicating
that he would file a new petition. The court appointed counsel
to represent Hall, and directed that Hall file a supplemental
Motion to Re-Open Under Rule 60(b). Hall, through counsel,
then filed a supplemental motion seeking relief under Rule
60(b)(6). The district court afforded Hall relief under Rule
60(b)(6), and found that habeas relief was warranted. The
state appealed.

                                II

    Rule 60(b)(6) entitles the moving party to relief from
judgment for “any other reason that justifies relief” and a
motion invoking this rule must be filed “within a reasonable
time . . . after the entry of the judgment.” Fed. R. Civ. P.
60(b)(6), (c)(1). Our precedent is clear that “[w]e use Rule
60(b)(6) ‘sparingly as an equitable remedy to prevent
manifest injustice.’” Lal v. California, 610 F.3d 518, 524
(9th Cir. 2010) (emphasis added) (quoting United States v.
Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.
1993)). The Supreme Court has held, and we have recently
reiterated, that “[t]o justify relief under Rule 60(b)(6), a party
must show external ‘extraordinary circumstances’ suggesting
that the party is faultless in the delay.” Washington v. Ryan,
833 F.3d 1087, 1099 (9th Cir. 2016) (en banc) (quoting
                        HALL V. HAWS                          37

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,
507 U.S. 380, 393 (1993)); see also Gonzales v. Crosby,
545 U.S. 524, 535 (2005).

     Hall does not come close to showing a “good reason for
failing to take the action sooner,” United States v. Holtzman,
762 F.2d 720, 725 (9th Cir. 1985), or that he is “faultless in
the delay,” Washington, 833 F.3d at 1099. Quite to the
contrary, the record indicates that the fault lies with him
alone. The majority’s characterization of this case as
involving a “perfect storm” which “produced a situation in
which Hall would have been subject to ‘manifest injustice’ if
not for Rule 60(b)(6),” Op. at 19, is beyond generous; it is
inventive. It was not outside forces, but Hall’s own conduct
(or lack thereof), that “produced” this situation. Hall failed
to notify the district court in 2006 of how he wished to
proceed despite receiving notice that his petition would be
dismissed if he did not affirmatively select one of the two
options presented to him. Sherrors allegedly continued to
advise Hall that he was filing “writs and motions” with Hall’s
name included as a “co-submission.” Hall also asserts that he
had a “good faith reason to believe his interests were included
in any outcome of [Sherrors’s case].” But nothing in the
record indicates that Hall held this belief at the time he failed
to file a formal abandonment or otherwise take action on his
own petition. And although both the district court and the
majority accept Hall’s assertion that Sherrors’s habeas
petition was originally submitted to the district court on
behalf of both Hall and Sherrors, reference to Sherrors’s
habeas petition reveals no such co-submission. See Case No.
3:05-cv-01262-IEG-LSP, District Court Docket No. 1. What
is more, Hall waited over three years to take action to join
Sherrors’s case.
38                      HALL V. HAWS

    Granting Rule 60(b)(6) relief under these circumstances
not only contradicts our Rule 60 jurisprudence but blithely
accepts Hall’s excuses for his inaction. Indeed, the conclusion
that these facts “are the reason for Hall’s failure to comply
with the district court’s January 25, 2006 order” finds no
support in the record. Op. at 19. Hall alone bears the
responsibility for the dismissal of his case and his three-year
delay in seeking to reopen it. These facts compel me to
conclude that the district court abused its discretion in finding
“extraordinary circumstances” warranting relief under Rule
60(b)(6).

                               III

     The majority compounds its mistake by finding an error
of constitutional magnitude where none exists. “The Due
Process Clause of the Fourteenth Amendment ‘protects the
accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the
crime with which he is charged.’” Francis v. Franklin,
471 U.S. 307, 313 (1985) (quoting In re Winship, 397 U.S.
358, 364 (1970)). This principle “prohibits the [s]tate from
using evidentiary presumptions in a jury charge that have the
effect of relieving the [s]tate of its burden of persuasion
beyond a reasonable doubt of every essential element of a
crime.” Id. (citations omitted). “A permissive inference
instruction allows, but does not require, a jury to infer a
specified conclusion if the government proves certain
predicate facts. Although such an instruction does not shift
the burden of proof, it violates due process ‘if the suggested
conclusion is not one that reason and common sense justify
in light of the proven facts before the jury.’” United States v.
Warren, 25 F.3d 890, 897 (9th Cir. 1994) (quoting Francis,
471 U.S. at 314–15). An instructional error rises to the level
                        HALL V. HAWS                           39

of a constitutional violation if “the ailing instruction by itself
so infected the entire trial that the resulting conviction
violates due process.” Estelle v. McGuire, 502 U.S. 62, 72
(1991) (citations omitted).

    Here, the California Court of Appeal addressed the merits
of Hall’s instructional-error claim only as an error of state
law, and found that any error was harmless under Watson,
46 Cal. 2d 818. The California Court of Appeal did not
expressly address Hall’s claim that this instructional error
violated his due process rights. Hall then petitioned to the
California Supreme Court, claiming that the Court of Appeal
erred in applying Watson, 46 Cal. 2d 818, rather than
Chapman, 386 U.S. at 24. The California Supreme Court
summarily denied Hall’s petition.

      “When a state court rejects a federal claim without
expressly addressing that claim, a federal habeas court must
presume that the federal claim was adjudicated on the merits
. . . .’” Johnson v. Williams, 568 U.S. 289, 133 S. Ct. 1088,
1096 (2013). Here, we may assume that Hall’s due process
claim was adjudicated on the merits, although neither the
California Court of Appeal nor the California Supreme Court
expressly addressed it. The Supreme Court has directed that
Harrington v. Richter, 562 U.S. 86 (2011), governs our
analysis in this circumstance. Williams, 133 S. Ct. at 1096.
Thus, “[u]nder § 2254(d),” we “must determine what
arguments or theories . . . could have supported . . . the state
court’s decision; and then . . . must ask whether it is possible
fairminded jurists could disagree that those arguments or
40                          HALL V. HAWS

theories are inconsistent with the holding in a prior decision
of this Court.”1 Harrington, 562 U.S. at 102 (emphasis
added).

    Hall does not come close to satisfying this standard. The
Court of Appeal could have determined that the permissive
inference instruction given at Hall’s trial did not so infect the
entire trial that his conviction violates due process, and
fairminded jurists could disagree about the correctness of this
determination. In reaching the opposite conclusion, the
majority “collaps[es] the distinction between ‘an
unreasonable application of federal law’ and what [the
majority] believes to be ‘an incorrect or erroneous
application of federal law.’” Nevada v. Jackson, 133 S. Ct.


     1
       The majority contends that Harrington does not apply because the
Court of Appeal’s analysis under the Watson standard indicates that it
determined that there was no constitutional error. The majority further
contends that the court’s citation to People v. Barker, 91 Cal. App. 4th
1166 (2001), provides sufficient “insight into the state court’s reasoning
for rejecting Hall’s constitutional claim.” Op. at 26 n.10. But the citation
to Barker tells us nothing about the Court of Appeal’s reasons for denying
the federal claim, since Barker finds that giving CALJIC No. 2.15
implicates a defendant’s federal due process rights, 91 Cal. App. 4th at
1174–76 (assessing error under Chapman standard), while Prieto
implicitly rejects that conclusion, 30 Cal. 4th at 249. Accordingly, we
cannot treat this citation as a “reasoned” decision on Hall’s due process
claim. Cf. Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016).

     Moreover, the majority’s analysis contradicts the clear holding of
Williams, 133 S. Ct. at 1096. In Williams, the Supreme Court instructed
that where, as here, a state court considers a petitioner’s federal claim but
does not “expressly acknowledge” it, the reviewing federal court must
assess the state court’s decision under Harrington. Williams, 133 S. Ct.
at 1093, 1096. This is true even if the state court cites to the controlling
federal standard, or cites cases which reference federal law. Id. at 1093,
1098–99.
                            HALL V. HAWS                                 41

1990, 1994 (2013) (emphasis in original) (quoting Williams
v. Taylor, 529 U.S. 362, 412 (2000)).

    People v. Prieto, 30 Cal. 4th 226 (2003), does not support
the conclusion that giving CALJIC No. 2.15 violated Hall’s
due process rights. Instead, Prieto found that “application of
CALJIC No. 2.15 to nontheft offenses like rape and murder”
is improper under California state law. Id. at 248. The Prieto
court explained that the instruction was an error under state
law because “‘proof a defendant was in conscious possession
of recently stolen property simply does not lead naturally and
logically to the conclusion the defendant committed’ a rape
or murder.” Id. at 249 (emphasis added) (quoting People v.
Barker, 91 Cal. App. 4th 1166, 1176 (2001)).2 By contrast, a
permissive inference instruction “is constitutional so long as
the inference would not be irrational.” Yates v. Evatt,
500 U.S. 391, 402 n.7 (1991) (emphasis added) (citing

    2
      Prieto’s citation to Barker is revealing, but not for the reasons given
by the majority. See Op. at 25. Indeed, the Prieto court appears to have
considered, and rejected, Barker’s conclusion that instructing the jury with
CALJIC No. 2.15 on a murder charge implicates a defendant’s due
process rights. 30 Cal. 4th at 248–49. Prieto also rejected the argument
that CALJIC No. 2.15 violated due process by creating a mandatory
inference, as it found that “nothing in the instruction absolved the
prosecution of its burden of establishing guilt beyond a reasonable doubt.”
30 Cal. 4th at 248; see generally Sandstrom v. Montana, 442 U.S. 510,
521–24 (1979). The court looked to the jury instruction requiring that the
prosecution prove the elements of the offense beyond a reasonable doubt,
and stated that the trial court gave “other instructions properly
instruct[ing] the jury on its duty to weigh the evidence, what evidence it
may consider, how to weigh that evidence, and the burden of proof” such
that “there is ‘no possibility’ that [the instruction] reduced the
prosecution’s burden of proof in this case.” 30 Cal. 4th at 248. This
discussion further evidences that the Prieto court considered, and
rejected, the proposition that giving CALJIC No. 2.15 is an error of
constitutional significance.
42                      HALL V. HAWS

Francis, 471 U.S. at 314–15). An inference may be “rational”
without “flowing naturally and logically,” and the
constitutional error standard thus presents a lower hurdle for
an instruction to clear.

    The California Supreme Court reached this same
conclusion when it considered whether CALJIC No. 2.15
created an improper permissive inference in violation of a
defendant’s due process rights. People v. Moore, 51 Cal. 4th
1104, 1132 (2011). The Moore court explained: “Although
we concluded in Prieto that the connection between a
defendant’s guilt of nontheft offenses and his or her
possession of property stolen in the crime is not sufficiently
strong to warrant application of the slight corroboration rule,
this does not mean that drawing a connection between
possession and guilt is irrational.” Id. (emphasis added). The
court stated that it “[could not say], therefore, that it would
have been irrational for the jury . . . to draw an inference of
defendant’s guilt of the . . . murders from his possessing their
property soon after the murders when there was other slight
corroboration of guilt, especially when it is likely the same
person or persons who killed the victims also took their
belongings.” Id. (emphasis in original) (citation omitted).
This reasoning, although not binding on this court, is
logically sound, and supports a finding that the state court
could have reasonably determined that giving the jury
CALJIC No. 2.15 was not a constitutional error, and that
fairminded jurists could disagree with the correctness of this
result.

    The majority concludes the opposite, and finds that the
jury instruction violated Hall’s due process rights. Op. at
24–26. The majority finds not only that the state court erred
in concluding that this error was one of state law only, but
                        HALL V. HAWS                          43

that this decision was objectively unreasonable. Op. at 26. In
doing so, the majority repeats the error that we are so often
criticized for, and “treat[s] the unreasonableness question as
a test of its confidence in the result it would reach under de
novo review . . . .” Harrington, 562 U.S. at 102.

     The majority’s conclusion further ignores that we
“determine the constitutionality of a permissive inference
instruction on a case-by-case basis,” in the context of the trial
at issue. United States v. Warren, 25 F.3d 890, 898 (9th Cir.
1994) (citing Ulster County v. Allen, 442 U.S. 140, 162–67
(1979)). Reviewing the record evidence makes clear that it is
rational to infer, from the evidence that Hall had Foth’s
property in the days following Foth’s murder and the other
corroborating evidence presented at trial, including Hixon’s
detailed testimony, that Hall killed Foth. This inference is
“one that reason and common sense justify in light of the
proven facts before the jury,” and thus there was no
constitutional violation. Francis, 471 U.S. at 315.

    Accordingly, the state court did not err, let alone
unreasonably apply clearly established federal law, in
rejecting Hall’s claim that instructing the jury with CALJIC
No. 2.15 was a constitutional error. To the contrary, giving
the jury this instruction was an error of state law only.

                               IV

    Even assuming that instructing the jury with CALJIC No.
2.15 was not simply an error of state law, but was an error of
constitutional magnitude, Hall is still not entitled to relief
because any error was harmless.
44                         HALL V. HAWS

    Establishing that giving the jury CALJIC No. 2.15
violated his due process rights requires Hall to show both that
the instruction’s “suggested conclusion [was] not one that
reason and common sense justif[ied] in light of the proven
facts,” Warren, 25 F.3d at 897, and that giving the instruction
was not harmless beyond a reasonable doubt, see, e.g.,
Chapman, 386 U.S. at 24. Just as the state court’s denial of
Hall’s federal claim could have been supported by the theory
that giving CALJIC No. 2.15 was not a constitutional error,
it also could have been supported by the theory that any
constitutional error was harmless beyond a reasonable doubt.3
And, as the Supreme Court made clear in Ayala, when a state
court determines that an error was harmless beyond a
reasonable doubt, that determination is entitled to AEDPA
deference. 135 S. Ct. at 2199. We must therefore ask
“whether it is possible fairminded jurists could disagree” with
the correctness of the state court’s denial of Hall’s federal
claim on the theory that any error was harmless beyond a
reasonable doubt. Harrington, 562 U.S. at 102.

    Of course, because this is a collateral proceeding, we
must apply not only the AEDPA/Chapman standard of
review, but also the standard set forth by Brecht v.
Abrahamson, 507 U.S. 619 (1993), which requires a
petitioner to establish “actual prejudice.” Id. at 637. When
assessing a state court’s harmlessness determination under

     3
       Again, although the California Court of Appeal assessed
harmlessness, it did so under the Watson standard, and addressed only
whether the error was one of state law. The California Supreme Court
issued a summary denial of Hall’s federal claim. As explained above,
when a state court’s determination of a federal claim is unaccompanied by
a reasoned decision, we “must determine what arguments or theories . . .
could have supported . . . the state court’s decision . . . .” Harrington,
562 U.S. at 102 (emphasis added); Williams, 133 S. Ct. at 1096.
                        HALL V. HAWS                          45

this test, “relief is proper only if the federal court has ‘grave
doubt about whether a trial error of federal law had
substantial and injurious effect or influence in determining
the jury’s verdict.’” Ayala, 135 S. Ct. at 2197–98 (quoting
O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). “There must
be more than a ‘reasonable possibility’ that the error was
harmful.” Id. at 2198 (quoting Brecht, 507 U.S. at 637). This
standard “reflects the view that a ‘State is not to be put to
th[e] arduous task [of retrying a defendant] based on mere
speculation that the defendant was prejudiced by trial error;
the court must find that the defendant was actually prejudiced
by the error.’” Id. (quoting Calderon v. Coleman, 525 U.S.
141, 146 (1998)). Importantly, as the Supreme Court
cautioned us in Ayala, the Brecht standard does not
“somehow abrogate[] the limitation on federal habeas relief
that § 2254(d) plainly sets out.” Id. While we “need not
‘formally’ apply both Brecht and AEDPA/Chapman,’
AEDPA . . . ‘sets forth a precondition to the grant of habeas
relief.’” Id. (quoting Fry v. Pliler, 551 U.S. 112, 119–20
(2007)). Thus, it is not enough to find actual prejudice under
the Brecht standard; the Chapman/AEDPA standard must
also be met, and we must therefore accept a state court’s prior
harmless error determination unless it involved such an
“unreasonable” application of Supreme Court precedent that
“no fairminded jurist” could agree with it. Ayala, 135 S. Ct.
at 2199.

    The majority applies the wrong standard, and in doing so,
fails to afford the state court the deference it is due. The
majority’s error here is threefold. It first ignores Harrington
and Williams, and fails to ask what arguments could have
supported the state court’s decision. It then repeats the error
of Deck v. Jenkins, 814 F.3d 954 (9th Cir. 2016), and states
that it need not review the state court’s decision for
46                      HALL V. HAWS

reasonableness under Chapman because “[a] determination
that the error resulted in ‘actual prejudice’ [under Brecht]
necessarily means that the state court’s harmless error
determination was not merely incorrect, but objectively
unreasonable,” Op. at 27. Cf. Deck, 814 F.3d at 959–60 (Bea,
J., dissenting from denial of reh’g en banc). And finally,
hedging its bets, the majority purports to engage in an
assessment of harmless error under Chapman, but concludes
that because the California Court of Appeal reviewed the
alleged error under Watson rather than Chapman, its
harmlessness determination was objectively unreasonable.
Op. at 28. Then, having dismissed the state court’s
harmlessness determination, the majority engages in a de
novo review under Brecht to conclude that the supposed
instructional error resulted in actual prejudice to Hall. Op. at
28–30. This circular logic fails to afford the proper deference
to the theory of harmlessness that reasonably supported the
state court’s denial of Hall’s federal claim.

    Indeed, the overwhelming evidence presented at trial that
Hall murdered Foth underscores that it would have been
entirely reasonable for the state court to reject Hall’s federal
claim on the basis that the error was harmless. Lena Hixon
testified in detail about the manner in which Hall and
Sherrors committed the murder, and her testimony was
corroborated by, and consistent with, other evidence
presented at trial. The prosecution also admitted evidence that
Hixon told a fellow inmate that she had held Foth down as
Sherrors and Hall stabbed him, and that the three of them—
Hixon, Sherrors, and Hall—had robbed Foth and killed him,
leaving him naked in the bushes. The prosecution introduced
evidence corroborating and supporting Hixon’s account of the
murder. Foth’s body was found naked. An autopsy report
revealed that Foth sustained eighty-three stab wounds. When
                        HALL V. HAWS                         47

police arrested Sherrors and Hall, they found Foth’s class ring
in a pair of Hall’s pants. Sherrors and Hall kept Foth’s car for
several days, claiming it belonged to Hixon’s mother. The
burned and destroyed car was found near Hall and Sherrors’s
apartment the day after the two men saw a news report
describing the car. Someone unsuccessfully attempted to use
Foth’s ATM card at 8:56 PM the night of the murder, and
someone used a cell phone in Foth’s possession to call a
pager owned by Hixon’s boyfriend, Michael Washington.
When Hall and Sherrors were arrested and searched, the
police found Washington’s pager number in Sherrors’s
pocket. Each of these pieces of evidence provides
corroboration for Hixon’s testimony.

     Hixon’s testimony also accounts for specific details of
Foth’s murder. For example, responding officers found a
number of items at the scene, including a broken fingernail
and a watch. Hixon testified that when Hall and Sherrors
initially let Foth out of the trunk of the car, Sherrors had
grabbed her hands, breaking two of her acrylic fingernails.
She also testified that after the murder, Sherrors mentioned
dropping his watch at the scene. Evidence showed that
Foth’s ATM card was unsuccessfully used that night; Hixon
testified that, following the murder, the trio attempted to use
Foth’s ATM card at a convenience store.

    Moreover, while the California Court of Appeal applied
only the Watson harmless-error standard in assessing the
instruction’s prejudicial effect, its sound reasoning provides
further support for concluding that the denial of Hall’s federal
claim was reasonable. The California Court of Appeal asked
“whether the error [was] prejudicial, i.e., whether it is
48                     HALL V. HAWS

reasonably likely the jury would have reached a different
result if the court had not given the instruction.” The court
held:

       We answer this question in the negative.
       CALJIC No. 2.15 specifically instructed the
       jurors that they could not infer guilt of murder
       from the defendants’ possession of recently
       stolen property absent corroborating evidence
       of guilt. The inference of guilt addressed in
       CALJIC No. 2.15 is permissive, not
       mandatory, and thus the jury was entitled to
       credit, or reject, the inference based on its
       evaluation of the evidence.

It further observed that the jurors were instructed that they
needed to find the elements of each crime, and the special
circumstances, beyond a reasonable doubt. Most importantly,
the court determined that because the jury found true the
special circumstance that the defendants committed the
murder during the commission of a robbery, it was clear that
the jury had “accepted the substance of Hixon’s testimony
regarding the defendants’ involvement in the incident,” and,
“[b]ased on Hixon’s testimony, there is no reasonable
likelihood that [the jury] would have rendered a verdict more
favorable to the defendants had the court omitted this
instruction.”

    By contrast, the majority walks through what it deems to
be the flaws in Hixon’s testimony, stating that it is “nearly
impossible to believe” her account “of the timeline of
events,” that she “lied about using and possessing Foth’s
property,” that she “downplayed her own involvement in the
crimes,” and that she “lied or changed her story regarding
                       HALL V. HAWS                         49

several other details of the night.” Op. at 28–29. Adding up
these invented shortcomings, the majority concludes that the
jury “could have disbelieved Hixon,” and “may have been
encouraged to infer that Hall committed the murder based on
the mere fact that he was in possession of the ring and the
Audi in the days after the murder.” Op. at 29–30. These
speculations do not show that the theory of harmlessness that
may have supported the state court’s rejection of Hall’s due
process claim was unreasonable. See Ayala, 135 S. Ct. at
2198–99. Indeed, the majority’s musings overlook that the
jury was presented with the flaws in Hixon’s testimony and
chose to believe her not only when they convicted Sherrors
and Hall the first time, but again when they convicted
Sherrors at his retrial.

     The fact that Sherrors was retried without the erroneous
instruction and was again convicted of first degree murder
only confirms that any error in giving CALJIC No. 2.15 was
harmless. At Sherrors’s retrial, the jury again found true that
he committed the crime during the commission of a robbery,
and he was again sentenced to life in prison without the
possibility of parole. People v. Sherrors, 2014 WL 6907990,
at *1 (Cal. Ct. App. Dec. 9, 2014). We therefore need not
wonder what might have happened if Hall was tried without
the erroneous instruction. Sherrors’s reconviction affirms that
the state court’s rejection of Hall’s due process claim was an
entirely reasonable application of controlling precedent, and
that any error in giving the jury CALJIC No. 2.15 in Hall’s
trial did not have a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht, 507 U.S.
at 637.
50                       HALL V. HAWS

                                V

    Hall’s years-long inaction precludes him from
demonstrating the type of extraordinary circumstances
required for relief under Rule 60(b)(6). And, even assuming
that such relief were warranted, Hall has not shown that the
permissive inference created by CALJIC No. 2.15 violated
his due process rights. Finally, even accepting that
instructing the jury with CALJIC No. 2.15 amounted to a
constitutional error, the instruction did not actually prejudice
Hall. These serious errors will result in California having to
retry a defendant who is undoubtedly guilty of the murder he
committed.

    It bears repeating that “[a]s a condition for obtaining
habeas corpus from a federal court, a state prisoner must
show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. That standard is not met here.
The majority’s decision to the contrary disregards not only
binding precedents, but the Supreme Court’s numerous
admonitions to this circuit that it adhere to AEDPA’s
stringent standards.

     I therefore respectfully dissent.
