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Ninth Circuit Orders Habeas Relief After California Concedes Conviction Should Be Overturned Due to Defense Counsel’s ‘Virulent Racism’

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit reversed the district court’s denial of Ezzard Charles Ellis’ petition for a writ of habeas corpus and remanded with instructions to issue a conditional writ after California conceded that Ellis’ conviction should be overturned due to his attorney’s virulent racism.

In 1991, Ellis and his codefendant (both black men) were convicted of murder and other crimes after being tried five times for their roles in a robbery of two men at a McDonald’s drive-thru in 1989. (The first two trials ended in mistrials due to missing witnesses, and the third and fourth trials resulted in hung juries.)

In 2003, Ellis learned that his trial attorney, Donald Ames, was a virulent racist after the Ninth Circuit granted habeas relief in two other cases that had found Ames ineffective. Ellis then obtained declarations from Ames’ former secretary (Ames died in 1999), Ames’ daughters, and a court clerk. The secretary, who is black, stated Ames referred to her as “that dumb little nigger” and more than once called her a “dumb fucking bitch.” Ames’ oldest daughter stated her father “especially ridiculed black people [saying] ‘trigger the nigger’ or ‘shoot the coon to the moon.’”

The youngest daughter recalled a time in 1990 or 1991 when her father was representing two black men accused of robbing someone at a fast-food restaurant, and her father referred to his clients with racial slurs and stated his clients were stupid.

According to the clerk, Ames referred to an Asian-American judge as a “fucking Jap” who should “remember Pearl Harbor.” In 1991, Ames told a legal secretary that his co-counsel was “a big black nigger trying to be a white man.” At work, Ames “consistently referred to his African American clients as ‘niggers.’” One client was sentenced to death, and Ames said the client was a “nigger who got what he deserved” and Ames stated he “did not care what happened to [another client] because [the client] was black.”

Ellis unsuccessfully sought habeas relief in the state courts, arguing Ames’ “racial prejudice against African Americans” created an actual conflict of interest. He then petitioned for habeas relief in federal court. The district court denied relief, and a three-judge panel of the Ninth Circuit affirmed. Ellis petitioned for a rehearing, and in an unusual twist, in the State’s response to the petition for rehearing, the State conceded that Ellis’ conviction should be overturned and agreed to waive any procedural bars.

A majority of the Ninth Circuit, sitting en banc, summarily reversed the district court’s denial and remanded with instructions to issue a conditional writ releasing Ellis unless the State retried him within a reasonable time. Because the majority did not write an opinion, Judge Jacqueline Nguyen, joined by Chief Judge Sidney R. Thomas and Judge Mary H. Marguia, wrote a concurring opinion to respond to the dissent’s contention that the majority’s order granting relief was forbidden by 28 U.S.C. § 2254(d).

Judge Nguyen, observed that “[w]hile 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 petitioner’s constitutional claim.” The State cannot waive the deference that the federal court must give to the state court opinion. Amado v. Gonzalez, 758 F.3d 1119 (9th Cir. 2014). Federal courts cannot grant relief under the AEDPA unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1).

When the state court decided Ellis’ petition claiming ineffective assistance of counsel, it employed the standard of Strickland v. Washington, 466 U.S. 668 (1984), meaning Ellis had to show that Ames performed deficiently and that Ames’ performance prejudiced the defense, i.e., the outcome would have been more favorable to Ellis absent Ames’ errors. The state court denied Ellis’ petition because he had failed to prove “by a preponderance of the evidence” that Ames’ errors resulted in prejudice. This decision was contrary to clearly established federal law because the Supreme Court of the United States has explicitly stated it would be contrary to Strickland to require a defendant to show prejudice “by a preponderance of the evidence.” Williams v. Taylor, 529 U.S. 362 (2000). 

Because the state court’s decision was contrary to federal law, the Court owed no deference to the decision. The Court was then free to decide Ellis’ petition under the standard of United States v. Cronic, 466 U.S. 648 (1984). Under Cronic, there are some circumstances where prejudice to the defense is presumed. And in Frazer v. United States, 18 F.3d 778 (9th Cir. 1994), the Ninth Circuit held that prejudice could be presumed from counsel’s extreme racial animus. This is because an attorney who is deeply racist cannot be a loyal advocate, especially one who states he does not care what happens to his clients. Additionally, an attorney’s actions — or inactions — throughout his representation are not made a part of the record for a reviewing court to examine in order to determine whether prejudice occurred.

Judge Nguyen concluded the concurring opinion with: “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.” 

Accordingly, the Court reversed the district court’s denial of Ellis’ habeas petition and remanded to the district court with instructions. See: Ellis v. Harrison, 947 F.3d 555 (9th Cir. 2020). 

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Ellis v. Harrison



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