FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTOPHER C. EDWARDS, 

No. 04-55752 Petitioner-Appellee,

D.C. No.

v.  CV-01-10401-RGK

A. LAMARQUE, Warden, OPINION Respondent-Appellant. 

Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted En Banc

October 5, 2006—San Francisco, California

Filed February 1, 2007

Before: Mary M. Schroeder, Chief Circuit Judge,

Betty B. Fletcher, Harry Pregerson, Alex Kozinski,

Pamela Ann Rymer, Andrew J. Kleinfeld,

Michael Daly Hawkins, Susan P. Graber,

Raymond C. Fisher, Richard A. Paez, Richard C. Tallman,

Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Hawkins;

Concurrence by Judge Graber;

Dissent by Judge Fisher

1165
COUNSEL

David C. Cook, Deputy Attorney General, Office of the Attorney General of the State of California, Los Angeles, California, for the respondent-appellant. 

Steven S. Lubliner, Law Offices of Steven S. Lubliner, Petaluma, California, for the petitioner-appellee. 

OPINION

HAWKINS, Circuit Judge: 

Petitioner-appellee Kristopher C. Edwards was convicted

of murder in state court and sentenced to life in prison without

possibility of parole. The district court granted his § 2254

habeas petition, finding that Edwards’s trial attorney had mistakenly caused Edwards to waive his marital privilege and

that this constituted prejudicial error entitling Edwards to

relief for ineffective assistance of counsel. The state appealed,

and a divided panel of this court affirmed, Edwards v. LaMarque, 439 F.3d 504 (9th Cir. 2005); we granted rehearing en

banc, 455 F.3d 973 (9th Cir. 2006), and now reverse. 

FACTS AND PROCEDURAL BACKGROUND

This case involves something of a murder mystery about

which there is little mystery. In 1996, based on information

obtained from Edwards’s wife, Kemet Gaines, Edwards was

arrested and charged with first degree murder, insurance

fraud, and conspiracy to commit insurance fraud. Before trial,

and in anticipation of Gaines’s testimony, Edwards’s counsel

John Meyers raised the issue of marital privilege under California Evidence Code § 980. The trial court ruled that

although Gaines could testify about her observations of

Edwards’s behavior around the time of the murder, she could

EDWARDS v. LAMARQUE 1169
not specifically testify about conversations between them

because of the privilege. 

At trial, the prosecution’s evidence showed that, at some

time in 1990, Edwards and the victim, Don Thomas, conspired to defraud Edwards’s automobile insurance company.

Thomas took Edwards’s Mercedes Benz, stripped parts from

the car, and then abandoned it. Edwards reported the car as

stolen and filed an insurance claim. According to their plan,

once the Mercedes was “recovered,” they would then replace

the parts and Edwards would pay Thomas for his participation. The scheme went awry, however, because Thomas

stripped too many parts and the insurance company “totaled”

the car, resulting in a smaller payout and loss of the car. 

Thomas and Edwards exchanged threats and angry phone

calls in the spring of 1991. In mid-July, Edwards received a

check for $3,267.86 from his insurance company and deposited it in his bank. Edwards testified that on the evening of

July 16, he telephoned Thomas and told him he could come

either to Edwards’s house or to the barbershop where

Edwards worked to get his money, but that Thomas never

showed up. 

The next evening, Thomas’s body was found in the alley

behind the barbershop. Thomas had been shot with both a 9

millimeter and a .38 caliber handgun. Ballistics evidence

revealed that the 9 millimeter bullets retrieved from the murder scene had been fired from a 9 millimeter weapon registered to Edwards’s wife. His wife was also the registered

owner of a .38 caliber handgun, but this gun was unavailable

for testing at the time of Edwards’s trial. However, the bullet

retrieved from Thomas was consistent with being fired from

the type of .38 handgun registered to Gaines. Gaines testified

that she had purchased these weapons for Edwards at his

request because (as a convicted felon) he could not purchase

them himself. 

1170 EDWARDS v. LAMARQUE
Gaines testified that on the evening Thomas was murdered,

she had gone to visit her brother and returned home to find

Edwards acting nervous and jittery. She also indicated he was

scrubbing his hands with laundry detergent. During crossexamination, Meyers asked Gaines what reason Edwards had

offered for washing his hands. The prosecutor objected and at

a sidebar argued that Meyers was asking about confidential

communications and that Edwards would be waiving the marital privilege if he continued. Meyers withdrew the question.

Gaines continued to testify that, the following evening,

Edwards received a phone call and then grabbed a shotgun,

started looking out the window, and eventually took her to a

nearby motel for the night. The next day, the couple left for

Florida, where they stayed a few days, and then they resettled

in Michigan. Some eight months later, Gaines left Edwards

and returned to Los Angeles. Located by police following her

return, Gaines provided information that led to Edwards’s

arrest. Gaines was given immunity from prosecution in

exchange for her testimony against Edwards. 

Thomas’s cousin, Tyrone Melton, also testified for the

prosecution. After learning of Thomas’s death, Melton called

Edwards to accuse him of the murder. Thomas testified that

Edwards threatened, “I’ll fuck you up too,” thus implicitly

admitting to killing Thomas. 

In the face of this evidence, Edwards chose to take the

stand and tell his side of the story. Edwards testified that he

had agreed to pay Thomas $1,500 for his role in the insurance

fraud, and that he had given Thomas the two handguns owned

by Gaines to keep as collateral. If Thomas wanted to keep the

guns, then Edwards would pay him only $1,000 instead. 

Edwards claimed he was home alone at the time of the

murder. He testified that one of his puppies had an accident

on the carpet and that he had cleaned it up and that was why

he was washing his hands with detergent when his wife

EDWARDS v. LAMARQUE 1171
returned home. Meyers asked Edwards, “Did you tell her

what had happened with the dog?” Edwards answered,

“About the dogs, yes.” 

Edwards confirmed that he had received a call from Thomas’s cousin Melton, accusing Edwards of killing Thomas.

According to Edwards, that same day, an anonymous caller

threatened: “You and that bitch are dead. We know where

you’re at and we know where you live.” At this point,

Edwards turned off the lights, loaded a shotgun, and stood by

the window. Edwards said his wife started hollering “What’s

going on? What’s happening? What’s wrong?” Meyers asked

Edwards, “Did you tell her anything?” Edwards replied, “I

told her ‘Somebody killed Don [Thomas] and they think I had

something to do with it, and they just threatened to come and

kill us.’ ” 

The prosecutor objected and called for a sidebar, arguing

that Edwards had waived the marital communications privilege by this testimony. Meyers argued that not every marital

conversation is privileged, and also argued vigorously that

even if Edwards had waived the privilege regarding the conversation on the second night about the phone call, this waiver

did not extend to other conversations that had occurred earlier

between Edwards and his wife. The following morning, the

court revisited the issue and indicated that it believed under

People v. Worthington, 113 Cal. Rptr. 322 (Ct. App. 1974),

Edwards no longer had an expectation of privacy in the conversations with his wife about the murder. Meyers attempted

to distinguish Worthington and again argued that any waiver

was only with respect to a single conversation and should not

be construed as a broad waiver, but the court disagreed. 

Almost immediately, Meyers stated that the court’s ruling

raised a significant ineffective assistance of counsel claim for

appeal. The court again disagreed with Meyers: 

The Court: Well I don’t agree. I don’t think it’s

inadequate representation. He chose to

1172 EDWARDS v. LAMARQUE
take the stand and he wanted to tell his

version. And the only way he can tell

his version is to tell it as he has told it.

And I think it’s a tactical decision.

Maybe you didn’t anticipate it was

breaching the privilege, but I don’t see

that as — 

Meyers: It wasn’t a tactic. It was a mistake. 

The Court: I don’t see it as ineffective assistance.

The prosecution called Gaines again in rebuttal. This time

she testified that Edwards had told her to visit her brother on

the night of the murder, and that she thought this was “very

odd” because he usually did not encourage her to spend time

with her family. She also testified that when she returned

home and saw him scrubbing his hands, she asked him what

he had done. At first, Edwards did not reply, and then Gaines

asked him whether he had killed Thomas. According to

Gaines, Edwards replied, “I’ll put it to you like this: you don’t

have to worry about hearing from him again.” On crossexamination, Meyers brought out the point that the couple did

have a young puppy in July 1991 and that Gaines had failed

to mention Edwards’s supposed confession in her first interview with the police. 

At the end of the first trial, the jury convicted Edwards of

the insurance fraud counts, but deadlocked on the murder

charge.1 A different attorney represented Edwards in the

retrial on the murder charge. Following new argument about

the waiver issue, the second trial court ruled that the waiver

of marital privilege would apply to the retrial and agreed with

1We can only speculate why this happened, but it appears that there was

some racial animosity between the jurors, which may have led one juror

to become a holdout vote for acquittal. 

EDWARDS v. LAMARQUE 1173
the first trial court that Meyers made a tactical decision to ask

the questions that led to waiver, and that Meyers was not ineffective for doing so. The court similarly denied a midtrial

motion for mistrial. This time, the jury convicted Edwards of

the murder. The court also denied Edwards’s post-conviction

motion for a new trial, which again asserted ineffective assistance of counsel with respect to Meyers’s actions that waived

the privilege. 

On direct appeal, Edwards argued that the trial court erroneously found that the marital privilege was waived, that the

waiver was limited in scope, and that Meyers had rendered

ineffective assistance of counsel. The California Court of

Appeal held that the first trial court had properly found that

the privilege had been waived. It also rejected Edwards’s

claim of ineffective assistance. The court stated:

The trial court also properly determined that eliciting appellant’s testimony about his version of that

conversation did not constitute ineffective assistance

of counsel. To establish ineffective assistance of

counsel, a defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and

that there is a reasonable probability that, but for

counsel’s deficient performance, the defendant

would have obtained a more favorable outcome. In

determining whether counsel’s performance was

deficient, a court must generally exercise deferential

scrutiny, viewing the reasonableness of counsel’s

acts under the circumstances as they stood at the

time counsel acted and should not second-guess reasonable tactical decisions. The trial court need not

accept a self-proclaimed assertion by trial counsel

that trial counsel’s performance was inadequate. 

In view of the strong evidence against appellant,

defense counsel could reasonably have decided to

1174 EDWARDS v. LAMARQUE
introduce appellant’s testimony regarding his version

of the conversation he had with Gaines on the night

of July 17, 1991. In fact, as previously noted, the

first jury deadlocked on the murder charge. Since

defense counsel was aware that the trial court had

ruled that defense counsel could not introduce evidence of the defense’s version of a conversation

between appellant and Gaines without opening the

door to the prosecution’s version of that conversation, the trial court reasonably determined that eliciting appellant’s testimony regarding his conversation

with Gaines on the night of July 17, 1991, was a reasonable tactical decision rather than ineffective assistance of counsel. 

(citations omitted). 

Edwards filed a petition for review in the California

Supreme Court, but received a postcard denial. Edwards then

filed his habeas petition in the district court in December

2001, alleging, among other claims, that Meyers provided

ineffective assistance. A magistrate judge issued a report and

recommendation, recommending that the district court grant

the petition on the ineffective assistance of counsel claim. The

magistrate judge concluded that the state court determination

that Meyers had made a tactical decision was objectively

unreasonable in light of the facts before it. The magistrate

judge also concluded that even if a tactical decision, it was not

a reasonable one, and also found that Edwards had been prejudiced by this error. The district court adopted the report and

recommendation and granted Edwards’s petition, and this

appeal followed.

DISCUSSION

I

Edwards’s appeal is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.

EDWARDS v. LAMARQUE 1175
§ 2254, which significantly constrains our review of state

court proceedings. We may not grant a writ of habeas corpus

on behalf of a person in state custody unless the state’s adjudication of his claim “(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 (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.” Id.

§ 2254(d). 

The Supreme Court instructs that, in determining whether

a state court’s application of law or factual determination is

“unreasonable,” we cannot simply consider whether we would

have reached a different outcome on the same record. Rice v.

Collins, 126 S. Ct. 969, 976 (2006) (stating that “[r]easonable

minds reviewing the record might disagree about” the ultimate issue is insufficient for habeas relief). “The ‘unreasonable application’ clause requires the state court decision to be

more than incorrect or erroneous.” Lockyer v. Andrade, 538

U.S. 63, 75 (2003). Only if the evidence is “too powerful to

conclude anything but” the contrary should we grant relief.

Miller-El v. Dretke, 545 U.S. 231, 265 (2005). 

[1] Because this case involves a claim of ineffective assistance of counsel, there is an additional layer of deference to

the choices of trial counsel. We “must indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.”

Strickland v. Washington, 466 U.S. 668, 689 (1984) (internal

quotation marks omitted). To prevail on a claim of ineffective

assistance, a petitioner must demonstrate that “counsel made

errors so serious that counsel was not functioning as the

‘counsel’ guaranteed . . . by the Sixth Amendment,” id. at

687, and that “there is a reasonable probability that, but for

1176 EDWARDS v. LAMARQUE
counsel’s unprofessional errors, the result of the proceeding

would have been different,” id. at 694.

II

A

We begin by considering the state court’s determination

that Meyers made a tactical decision to ask the questions

which led Edwards to waive the marital privilege. We must

apply AEDPA’s standards to the state court’s “last reasoned

decision” on the claim, see Ylst v. Nunnemaker, 501 U.S. 797,

803-04 (1991), which in this case was the opinion of the California Court of Appeal. Although “AEDPA generally requires

federal courts to review one state decision,” if the last reasoned decision adopts or substantially incorporates the reasoning from a previous state court decision, we may consider

both decisions to “fully ascertain the reasoning of the last

decision.” Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir.

2005), cert. denied, 126 S. Ct. 2041 (2006). In ruling on

Edwards’s ineffective assistance of counsel claim, the California Court of Appeal refers back to and incorporates the reasoning of the first trial court to conclude that Meyers made a

reasonable tactical decision. 

[2] Although the reasonableness of counsel’s decision is

best described as a question of law, whether Meyers’s actions

were indeed “tactical” is a question of fact. See, e.g., Holsomback v. White, 133 F.3d 1382, 1386-87 (11th Cir. 1998); Berryman v. Morton, 100 F.3d 1089, 1095 (3d Cir. 1996).

Therefore, we must initially decide whether the state court

made an unreasonable determination of the facts in light of

the evidence before it. Taylor v. Maddox, 366 F.3d 992, 999-

1000 (9th Cir. 2004). 

[3] We recognize that Meyers himself quickly claimed he

made a mistake, rather than a tactical decision. As the California Court of Appeal noted, however, the trial court was not

EDWARDS v. LAMARQUE 1177
obligated to “accept a self-proclaimed assertion by trial counsel” of inadequate performance. The trial court judge, who

was in a unique position to observe Meyers’s actions throughout the trial, rejected this assertion and the California Court

of Appeal deferred to that determination.2 We do the same.

See Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (holding that federal habeas courts have “no license to redetermine

credibility of witnesses whose demeanor has been observed

by the state trial court, but not by them”). 

We are also aware that there are portions of the record

where Meyers appeared to misunderstand the marital privilege. However, midtrial the court clearly advised Meyers that

he could not characterize certain conversations as nonconfidential and thereby preclude the government from introducing Gaines’s differing version of the same conversation.

Meyers heeded this warning and withdrew a question to

Gaines during his cross-examination. This sequence of events

supports the trial court’s rejection of Meyers’s claim of mistake, which occurred shortly thereafter. 

[4] We might reach a different conclusion on the cold

record if we were reviewing de novo. But that is not our task.

See McClure v. Thompson, 323 F.3d 1233, 1243-44 (9th Cir.

2003) (holding that state court findings of fact are entitled to

deference even though evidence may cast doubt on findings

such that federal court would have made different findings of

fact). The trial court judge who had observed Meyers throughout the trial readily dismissed Meyers’s assertion that he had

made a mistake. It was Meyers who raised the issue of spousal privilege pretrial and obtained a favorable ruling for his

client. Even though during trial it may have appeared that

2Although the California Court of Appeal did not rely on the determination of the second trial court on this issue, we share that court’s skepticism

of Meyers’s mea culpa: “Well, that’s a nice way to try to protect your client, but I’m not sure that that’s—that’s a real admission of incompetence

of counsel.” 

1178 EDWARDS v. LAMARQUE
Meyers did not fully comprehend the scope of that ruling, the

consequences of inquiring into spousal communications was

clearly brought into focus by the court during Gaines’s crossexamination. With full knowledge of this, Meyers still had

Edwards testify to his version of events, including the explanations he made to his wife. Meyers may have hoped that he

could “get by” with this line of questioning without waiving

the privilege, or at least without waiving it as to all communications, but it was not objectively unreasonable for the trial

court and the California Court of Appeal to conclude on the

facts before them that Meyers intentionally asked those questions of Edwards as part of his trial tactics.

B

Our conclusion, of course, raises the question of whether

Meyers’s tactics were reasonable. In evaluating the reasonableness of counsel’s actions, a reviewing court must consider

the circumstances at the time of counsel’s conduct, Strickland,

466 U.S. at 690, and cannot “second-guess” counsel’s decisions or view them under the “fabled twenty-twenty vision of

hindsight,” LaGrand v. Stewart, 133 F.3d 1253, 1271 (9th

Cir. 1998) (internal quotation marks omitted). 

As the California Court of Appeal recognized, Meyers was

confronted with a strong case against his client. If Edwards

did not testify, the jury would be left with no explanation for

the prosecution’s evidence, including the bizarre conduct his

wife observed around the time of the murder — the hand

washing, the pacing with the shotgun, the sudden out-of-state

departure, etc. The district court, however, reasoned that

Edwards could have presented his explanation for these

events — the dog mess and the anonymous threatening phone

call — without going into confidential communications with

Gaines and thus had nothing to gain by risking waiver of the

marital privilege. 

This reasoning, however, goes only so far. Having already

heard Gaines testify about her observations — including how

EDWARDS v. LAMARQUE 1179
strange she considered Edwards’s behavior — the jury was

left to speculate whether Edwards had even attempted to

explain his actions to his wife or whether he simply let her

think he was a murderer. After all, would not a truly innocent

man have justified his behavior to his wife? Moreover, without Edwards’s testimony that he had conveyed the caller’s

threat — which was supposedly directed at both Edwards and

his wife — to Gaines, there was no innocent explanation for

her decision to accompany him on their cross-country trek.

The couple’s sudden flight was one of the most damaging

pieces of the prosecution’s case, and Edwards certainly did

not want the jury to have the impression that his wife accompanied him out of fear of him as a murderer, as opposed to

fear of a third party. 

[5] Moreover, the district court’s conclusion that Meyers’s

conduct was unreasonable presumes that the finding of waiver

of the marital privilege was a foregone conclusion. Meyers,

however, argued forcefully that he could question Edwards

about his conversation with Gaines on the night after the murder without opening the door to different conversations with

her the night before. Although his argument did not prevail,

it was not an unreasonable argument in light of California law

at the time. The primary case relied on by the trial court, People v. Worthington, 113 Cal. Rptr. 322 (Ct. App. 1974),

involved dueling versions of a single conversation. Other California cases suggested that waiver of privilege was limited

and that a disclosure would waive the privilege only if it

amounts to a “significant part” of the confidential communication. See, e.g., Owens v. Palos Verdes Monaco, 191 Cal.

Rptr. 381, 390 (Ct. App. 1983) (“[A] waiver under Evidence

Code section 912 relates to the particular communication

which has been revealed and not to all communications concerning the subject matter of the lawsuit.”), disapproved on

other grounds by Applied Equip. Corp. v. Litton Saudi Arabia, Ltd., 869 P.2d 454, 464 n.10 (Cal. 1994). Indeed, this

very argument about the limited scope of the waiver was

1180 EDWARDS v. LAMARQUE
repeated by Edwards’s second trial counsel and again on

appeal. 

Finally, an additional factor that must be weighed in evaluating the risks and benefits at the time of Meyers’s decision

is how devastating the downside would be if the court did find

waiver as to all spousal communications. Meyers knew from

one of the police reports that Gaines claimed Edwards had

confessed to her on the night of the murder. Meyers also

knew, however, that he could impeach Gaines’s credibility

with not only her grant of immunity from prosecution, but

also with her omission of this obviously critical information

from her first interview with police (even though she had

given them other information pointing toward Edwards as the

murderer). In the end, in a worst-case scenario, Meyers would

wind up with a “he said, she said” credibility battle, but it

might be his client’s only hope for acquittal. 

Meyers’s decision to ask Edwards about conversations with

his wife was certainly risky and may not have turned out the

way he had hoped. But there are many different reasonable

ways to try a case and, in Meyers’s mind, desperate times

may have called for desperate measures. The California Court

of Appeal recognized this as well, concluding in light of the

“strong evidence” against Edwards that Meyers’s decision

was reasonable and did not amount to ineffective assistance.

Giving proper deference to this state court conclusion, and

even though we might reach a different conclusion under a

different standard of review, we cannot say that this determination was an objectively unreasonable application of Strickland to the facts of this case.3

3Because of our determination, we need not reach the prejudice prong

of Strickland. We do, however, agree with the California Court of Appeal

that there was strong evidence against Edwards even without his wife’s

testimony. Gaines’s testimony about Edwards’s confession, although damaging, was not the piece of evidence that tipped an otherwise balanced

scale in favor of the prosecution; it was more the bow on top of a nicely

wrapped package of motive, means, ballistics evidence, implied confession, and consciousness of guilt. 

EDWARDS v. LAMARQUE 1181
III

[6] We reverse the district court’s habeas grant. The California Court of Appeal was not objectively unreasonable in

determining that Edwards’s counsel made a reasonable, tactical decision to ask the questions that led to Edwards’s waiver

of the spousal privilege. 

REVERSED. 

GRABER, Circuit Judge, specially concurring: 

I concur in the result but not in all of the reasoning of the

majority opinion. 

I agree with Part II(A) of the dissent, which concludes that

Defendant’s counsel mistakenly waived Defendant’s marital

privilege, misunderstood the law, and did not make a “tactical” decision. The state court unreasonably found the decision

to have been “tactical.” 

But, because of our highly deferential standard of review,

I agree with Part II(B) of the majority opinion, which holds

that the state court permissibly concluded that counsel’s performance was not objectively unreasonable under the first

prong of Strickland v. Washington, 466 U.S. 668 (1984). Not

every mistake requires a conclusion that counsel acted outside

the bounds of professional competence. Moreover, in my

view, for the reasons alluded to in the majority’s footnote 3,

Defendant did not demonstrate prejudice under the second

prong of Strickland. 

Accordingly, I concur in the result. 

1182 EDWARDS v. LAMARQUE
FISHER, Circuit Judge, with whom B. FLETCHER, PREGERSON, PAEZ and RAWLINSON, Circuit Judges, join in

dissent: 

The objective record embodied in the trial transcript plainly

shows that Edwards’ counsel, John Meyers, never understood

the California law of marital privilege. In granting the writ,

the district judge, himself an experienced former California

Superior Court judge, found that Meyers’ waiver of Edwards’

privilege was neither tactical nor reasonable. Nonetheless, the

California Court of Appeal held that Meyers made the tactical

decision to intentionally waive Edwards’ privilege rights. The

majority reads the Court of Appeal’s decision as concluding

that Meyers simply made a high-risk tactical decision to try

to get into evidence one of Edwards’ conversations with his

wife without opening the door to her damning account of his

supposed confession to her. But even if the majority’s reading

is accurate, tactics based on ignorance cannot be what Strickland contemplates as “sound trial strategy,” see Strickland v.

Washington, 466 U.S. 668, 689 (1984); rather it is the essence

of attorney incompetence to fail to understand the governing

law necessary to formulate such a strategy. The clear record

evidence of incompetence here is “too powerful to conclude

anything but” that Meyers mistakenly waived Edwards’ marital privilege. Miller-El v. Dretke, 545 U.S. 231, 265 (2005).1

Moreover, we cannot agree with the dire picture the majority

paints to justify Meyers’ supposed strategy — that “desperate

circumstances require desperate measures.” The district court

carefully analyzed the trial record in concluding that the benefits of getting Edwards’ version of what he said to his wife,

Kemet Gaines, about the anonymous caller were dwarfed by

the risk of Gaines then being allowed to testify about her

highly prejudicial version of the “dog mess” conversation. 

1

See Edwards v. Lamarque, 439 F.3d 504 (9th Cir. 2005), vacated, 455

F.3d 973 (9th Cir. 2006). 

EDWARDS v. LAMARQUE 1183
We are mindful that AEDPA sets a high standard to allow

us to find a state court’s application of law or factual determination to be “unreasonable,” see 28 U.S.C. § 2254(d); Rice v.

Collins, 126 S. Ct. 969, 976 (2006), and that we must presume

an attorney’s conduct involved a competent trial strategy, see

Strickland, 466 U.S. at 689. On this record, however, we conclude that Edwards clears both hurdles. Meyers lacked the

legal competence to make such a decision. His inappropriate

questions, misinformed legal arguments and the predictable

damage resulting from opening the door to his wife’s version

of their discussion are ample evidence of his incompetence.

An attorney cannot make an informed tactical decision to

waive a privilege he does not understand. Thus it was objectively unreasonable for the California Court of Appeal to find

Meyers effective here. Because Edwards was prejudiced by

his counsel’s deficient representation, we would affirm the

district court’s grant of Edwards’ habeas petition. We therefore respectfully dissent.

I. Facts

The majority’s summary of the facts understates the extent

to which Meyers lacked a basic understanding of the law of

privilege and waiver, as evidenced by the trial transcript.

Meyers failed to understand the law governing marital privilege, not just at the beginning of trial but throughout. He

never shook his misperception that he could pick and choose

parts of sensitive communications between Edwards and

Gaines without waiving the privilege, even when warned by

both the prosecutor and the trial judge. His misunderstanding

led directly to his waiver of Edwards’ rights. 

Meyers knew before trial that Edwards’ wife had told

police that she was prepared to testify that during the

exchange with Edwards on July 17 about why he was washing

his hands, he had confessed to murdering Don Thomas. In

anticipation of Gaines’ testimony, Meyers raised the issue of

marital privilege, obtaining a trial court ruling in limine that

1184 EDWARDS v. LAMARQUE
Gaines could testify only about discussions between her and

Edwards regarding the insurance fraud scheme, and about her

observations of Edwards’ behavior on the nights in question.

Nonetheless, Meyers proceeded nearly to fumble away the

benefit of this limiting order by asking Gaines what reason

Edwards had given for washing his hands on July 17, the

night of the murder. Responding to an objection from the

prosecution that Meyers was getting into privileged territory,

Meyers asserted at sidebar that the conversation about

Edwards’ washing his hands was “not a confidential communication.” Meyers argued that some conversations between

Edwards and Gaines were confidential, but others were not.

Astonishingly, Meyers also argued that he could ask Gaines

about communications with Edwards because she had waived

her marital privilege by taking the stand. Meyers mistakenly

believed that because Gaines was not asserting her marital

privilege, he could ask her about confidential communications

with Edwards without waiving Edwards’ privilege. 

The trial judge attempted to clarify waiver law for Meyers,

explaining that other than statements made in furtherance of

the insurance fraud crime, “any statements that are made are

. . . confidential because they are between a husband and a

wife.” Accord North v. Superior Court of Riverside County,

8 Cal. 3d 301, 310 (Cal. 1972) (holding that all statements

made between husband and wife are presumed confidential).

The court also informed Meyers that he could not “characterize certain conversations as [not] confidential because

[Edwards and Gaines] might happen to be talking about the

dog. They are still confidential.” Meyers responded, “That’s

a pretty good issue,” and withdrew the question. 

Despite the trial court’s lesson in evidence law, Meyers

continued to blunder. During his direct examination of

Edwards, Meyers asked about the evening of July 18 when

Edwards received a death threat over the telephone from the

victim’s cousin, Tyrone Melton. Specifically, Meyers asked

EDWARDS v. LAMARQUE 1185
Edwards whether he told Gaines anything about the phone

call. Edwards responded, “I told her, ‘Somebody killed Don

and they think I had something to do with it, and they just

threatened to come and kill us.’ ” After another objection

from the prosecution, the court told Meyers that he had

allowed Edwards to waive the marital privilege by “testify-

[ing] to what [Edwards] told [Gaines].” Meyers objected, contending once again that “every statement made between a

husband and wife is not a confidentiality privilege” and that

Edwards had not waived the privilege because any communication between Edwards and Gaines regarding the phone call

“wasn’t confidential.” When told by the court that Edwards

could not “pick and choose” which conversations were confidential and which were not, Meyers replied, “Sure you can.”

Obviously, the court’s prior explanation that all communications between husband and wife are presumed confidential

had been lost on Meyers. 

The court gave Meyers the opportunity to come in the next

morning and provide some authorities for his proposition that

Edwards could designate certain conversations confidential

and others not confidential. Significantly, Meyers returned

empty-handed, and was forced on the spot to read and

respond to the key California case — People v. Worthington,

38 Cal. App. 3d 359 (Ct. App. 1974) — which was new to

him. Meyers’ extemporaneous riff on Worthington predictably did not persuade the judge, who ruled that Edwards’

marital privilege indeed had been waived. Meyers immediately responded, “Well, one thing for the record, that raises a

significant [ineffective assistance of counsel] claim if he is

convicted on appeal, in my judgment. ¶ [W]hat you’re saying

is I erred in asking that question and I, quote, opened the

door, close quote, to all the other stuff coming in. To me,

that’s inadequate representation of counsel.” The trial court

disagreed, finding that it was a “tactical decision,” although

adding that “[m]aybe you didn’t anticipate it was breaching

1186 EDWARDS v. LAMARQUE
the privilege . . . .” Meyers responded, “It wasn’t a tactic. It

was a mistake.”

2

II. Discussion

A. Meyers Mistakenly Waived Edwards’ Privilege 

The district court correctly rejected the California Court of

Appeal’s finding that Meyers’ acts reflected “tactical” decisions. The Court of Appeal reasoned that:

In view of the strong evidence against appellant,

defense counsel could reasonably have decided to

introduce appellant’s testimony regarding his version

of the conversation he had with Gaines on the night

of July 17, 1991. In fact, as previously noted, the

first jury deadlocked on the murder charge. Since

defense counsel was aware that the trial court had

ruled that defense counsel could not introduce evidence of the defense’s version of a conversation

between appellant and Gaines without opening the

door to the prosecution’s version of that conversation, the trial court reasonably determined that eliciting appellant’s testimony regarding his conversation

with Gaines on the night of July 17, 1991, was a reasonable tactical decision rather than ineffective

assistance of counsel. 

(Emphasis added.) 

In essence, the court assumed that Meyers deliberately

decided to open the door to Gaines’ confession testimony,

notwithstanding his earlier efforts to keep her testimony out

and despite his articulated misunderstanding of the all-ornothing character of the privilege. Such a high risk, self2We agree with the majority that Meyers’ mea culpa claiming mistake

is not dispositive. (Op. at 1177-78.) 

EDWARDS v. LAMARQUE 1187
destructive defense strategy seems implausible on its face. As

borne out by the transcript, and by the obviously devastating

impact on Edwards’ defense of letting Gaines testify that he

had essentially admitted to having killed Don Thomas, the

Court of Appeal’s reading of the record is not just implausible

but objectively unreasonable. 

The majority, which apparently does not want to defend the

Court of Appeal’s decision as written, acknowledges that

Meyers at least initially “appeared to misunderstand the marital privilege,” (Op. at 1178), but posits that Meyers — warned

by the trial court that he could not ask about parts of Edwards’

conversations with his wife — then made the tactical decision

to ask the questions that led Edwards to waive the marital

privilege, perhaps hoping he could “get by” without actually

opening the door to Gaines’ damaging testimony. (Op. at

1179.) The record simply does not bear out such a knowledgeable strategy. Rather it shows that Meyers persisted in

thinking he could ask about one interchange between the husband and wife without opening up their broader communications about the events of July 1991. Even the trial judge in

calling Meyers’ questioning “tactical” acknowledged, “Maybe

you didn’t anticipate it was breaching the privilege . . . .” That

observation not only underscores Meyers’ legal incompetence, but it gives the lie to the notion that Meyers had deliberately decided to waive the privilege.3

3Like the majority, we recognize that the trial judge “had observed

Meyers throughout the trial.” (Op. at 1178.) However, given the judge’s

seemingly contradictory conclusion that Meyers waived Edwards’ rights

as a litigation tactic but may not have known he was doing so, his “tactical” finding should carry less weight, notwithstanding the deference we

owe the trial judge and the limitations of appellate review from a trial transcript. Cf. Rice v. Collins, 126 S. Ct. 969, 975-76 (2006) (reviewing credibility findings of state trial court); see also id. at 977 (Breyer, J.,

concurring) (reminding that “[t]he trial judge is best placed to consider the

factors that underlie credibility” and that “[a]ppellate judges cannot on the

basis of a cold record easily second-guess a trial judge’s decision about

likely motivation” when reviewing Batson challenges). The trial judge did

1188 EDWARDS v. LAMARQUE
In short, Meyers made no tactical decision to reverse course

and let the prosecution put on Gaines’ damaging confession

testimony. He opened the door by mistake, plain and simple.

The Court of Appeal’s conclusion that Meyers intended to

waive his client’s privilege simply is not borne out by the

record. Nor is the majority’s alternative explanation objectively reasonable. The only “tactical” decision Meyers made

was to get in Edwards’ statement to Gaines about the anonymous caller’s threat, thinking he could limit it to that. A tactical decision with devastating consequences based on a

mistake of law is not effective assistance of counsel. 

B. Meyers’ Performance was Deficient 

Even if the California Court of Appeal reasonably understood Meyers to have made a tactical decision to waive the

privilege, the state court unreasonably applied the Strickland

standard in finding the tactic to be reasonable. By waiving

Edwards’ marital privilege and exposing him to the devastating impact of a confession for little testimony of value in

return, Meyers acted outside the bounds of professional competence. Indeed, the calculus was so one-sided as to reinforce

the conclusion that Meyers acted out of ignorance. 

In Strickland, the Supreme Court held that to prevail on an

ineffective assistance claim, a petitioner “must show that

counsel’s performance was deficient. This requires showing

that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” 466 U.S. at 687. As the district court properly

recognized, the Supreme Court and this circuit have compared

not articulate any reasoning that is not captured by the trial transcript —

Meyers’ demeanor, for example — but rather the judge appears to have

accepted, as the majority now does, that it is constitutionally acceptable

for an attorney to make a strategic decision based on an erroneous understanding of the law. 

EDWARDS v. LAMARQUE 1189
the risks and benefits associated with a lawyer’s tactical decisions. See, e.g., Darden v. Wainwright, 477 U.S. 168, 186

(1986); Mak v. Blodgett, 970 F.2d 614, 619 (9th Cir. 1992).

If we apply that kind of analysis to Meyers’ decision to waive

the privilege, the ledger is decidedly one-sided against waiver.

By waiving Edwards’ marital privilege, Meyers opened the

door to testimony from Gaines. Meyers knew that Gaines was

openly hostile to Edwards and had told police that he had confessed the murder to her. Not only did Gaines tell the police

about his confession, but she told them that “he’s crazy,” she

feared him and he had threatened her. Indeed, it was Gaines

who, five years after the murder, tipped off the police that her

husband was the murderer. Meyers knew that Gaines was

firmly in the prosecution’s camp. Balanced against this nearcertain and near-dispositive evidence, there was little for

Edwards to gain from Gaines’ testimony. 

The majority speculates that Meyers waived the privilege

so that the jury would not be left to wonder whether Edwards

attempted to explain his behavior — such as pacing the apartment with a shotgun and washing his hands — to his wife.

(Op. at 1180.) But Edwards had already explained his behavior to the jury — without waiving the marital privilege —

simply by testifying that Melton had threatened both him and

his wife, and by describing his attempt to clean up his dog’s

mess. The additional question of whether Edwards tried to

explain those actions to his wife concerns a minor detail that

pales in importance to Gaines’ revelation of Edwards’ confession. 

Similarly, the majority states that without waiver, “there

was no innocent explanation for [Gaines’] decision to accompany him on their cross-country trek.” (Op. at 1180.) That

assertion is perplexing; Edwards testified that Melton had

threatened both Edwards and Gaines without waiving the

privilege. Such testimony did not require delving into confidential communications between Edwards and Gaines and

provided reason enough to explain why Gaines accompanied

1190 EDWARDS v. LAMARQUE
Edwards when he fled from the state. The only benefit

Edwards could have hoped to receive from waiving the privilege was showing that Gaines knew she too had been threatened by the victim’s cousin. Once again, we are not persuaded

that it was reasonable for Meyers to seek the minimal benefit

accorded by this additional fact in exchange for the nearcertain revelation of a murder confession. 

Nor was Meyers’ waiver of Edwards’ privilege reasonable

even assuming there was a non-frivolous argument that

waiver should be limited to conversations that occurred on

July 18, the night after Edwards confessed to his wife. (Op.

at 1180-81.) That the scope of waiver was unsettled under

California law at the time only bolsters my conviction that

Meyers’ decision to waive was unreasonable. In light of the

considerable risk posed by Gaines’ testimony, Meyers should

not have plowed blindly into protected communications without first attempting to clarify the effect of waiver through a

motion in limine.4

The majority excuses Meyers’ decision to waive the privilege by recalling the adage, “desperate times call for desperate

measures.” (Op. at 1181.) As a preliminary matter, characterizing Edwards’ case as desperate is misleading. All of the evidence linking Edwards to the crime was circumstantial.

Although the victim’s cousin, Tyrone Melton, testified that

Edwards told him, “And I’ll fuck you up too,” Melton’s testimony was ambiguous and weak in comparison to what Gaines

would have to say. On cross-examination, Melton’s credibility was undermined when he admitted that he personally

desired to see Edwards convicted. The defense also brought

out that when Melton signed a police statement less than two

weeks after the murder, he recounted his phone conversation

with Edwards and left out any reference to Edwards’ alleged

4Meyers did not seek a preliminary ruling on the consequences of

Edwards testifying about his version of conversations with Gaines or the

limits of the testimony he could elicit from Gaines. 

EDWARDS v. LAMARQUE 1191
self-incriminating statement. At that time — when the conversation with Edwards was freshest in his mind — Melton told

the police only that Edwards had denied knowing about the

murder of Thomas or who had committed it. 

Moreover, the majority’s “desperate times” thesis does not

excuse ineffective assistance of counsel. As Strickland established, even in desperate times, there are discernible limits on

counsel’s justification for taking unwarranted risks. The decision to waive Edwards’ marital privilege falls outside those

limits. When the ultimate balance is calculated, the cost of

waiving Edwards’ marital privilege overwhelmingly outweighs any benefit to Edwards. By waiving Edwards’ marital

privilege rights, Meyers provided ineffective assistance and

the California Court of Appeal was objectively unreasonable

in finding otherwise. 

C. Edwards was Prejudiced by Meyers’ Ineffective

Assistance

To prevail on a claim of ineffective assistance, Edwards

must also show “that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The second trial judge

explicitly found that Edwards was prejudiced by the waiver of

his marital privilege, stating that without Gaines’ testimony:

the verdict may well have been a different one. So

that I want to make it clear that if I’m wrong on this,

I do think it’s reversible, from my standpoint, for

whatever the court of appeals wants to decide

because this is a key issue in this case. This testimony was very damaging. 

The trial court’s unequivocal assessment of prejudice is entitled to deference under 28 U.S.C. § 2254(d) and was not

objectively unreasonable. 

1192 EDWARDS v. LAMARQUE
When a state trial court reaches a reasoned conclusion that

the appellate court subsequently does not address, traditionally we have treated the trial court’s determination as the last

reasoned decision. See Hirschfield v. Payne, 420 F.3d 922,

928 (9th Cir. 2005) (reviewing trial judge’s oral decision to

deny petitioner’s motion to represent himself because state

appellate court did not address the ruling). The trial court’s

finding is the only determination on prejudice in the entire

state court record. Affording the state trial court’s determination adequate deference under AEDPA, we cannot say that its

finding of prejudice was objectively unreasonable. Without

the confession, the only evidence linking Edwards to the

crime was circumstantial and the impeached testimony from

the victim’s cousin that Edwards threatened to “fuck you up

too.” A defendant’s own confession is the most damning sort

of evidence available against him. See Bruton v. United

States, 391 U.S. 123, 139-40 (1968) (“[T]he defendant’s own

confession is probably the most probative and damaging evidence that can be admitted against him.”). Because a confession is so damaging, we are persuaded that under the

circumstances, the trial judge reasonably concluded that

Edwards was prejudiced by the waiver of his marital privilege. 

III. Conclusion

The California Court of Appeal’s conclusion that Meyers

made a tactical decision to waive Edwards’ marital privilege

was objectively unreasonable; the trial transcript makes clear

that Meyers did not comprehend the basic legal underpinnings

of the law of privilege and waiver and waived Edwards’ rights

only in error. Moreover, by opening Edwards up to the most

damning evidence available for little in return, Meyers rendered ineffective assistance of counsel. The state trial court’s

finding that there was a reasonable probability that but for

Meyers’ ineffective assistance, the verdict would have been

different was reasonable. We would affirm the district court

EDWARDS v. LAMARQUE 1193
and grant the habeas petition. We therefore respectfully dissent.

1194 EDWARDS v. LAMARQUE