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

June 7, 2005—Pasadena, California

Filed December 12, 2005

Before: Betty B. Fletcher, Pamela A. Rymer and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher;

Dissent by Judge Rymer

16145
COUNSEL

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

Steven S. Lubliner, Petaluma, California, for the petitionerappellee. 

OPINION

FISHER, Circuit Judge: 

Petitioner-appellee Kristopher C. Edwards (“Edwards”)

was convicted of murder in state court and filed a federal

habeas corpus petition alleging, among other things, ineffective assistance of counsel. The district court granted the petition, finding that trial counsel’s actions leading to Edwards’

waiver of his marital privilege constituted ineffective assistance of counsel and prejudiced Edwards. The state appeals;

we affirm. 

EDWARDS v. LAMARQUE 16149
I. BACKGROUND

On July 17, 1991, the body of Don Thomas was found in

an alley behind a barbershop where Edwards worked. Thomas

had died of multiple gunshot wounds from a .38 caliber gun

and 9-mm gun. Five years later, after a tip from Edwards’

wife, police arrested Edwards in Detroit, and he was tried in

California for the murder and for insurance fraud. 

Before trial, and in anticipation of Edwards’ wife Kemet

Gaines (“Gaines”) appearing as a witness, Edwards’ counsel

John Meyers (“Meyers”) raised the issue of Edwards’ marital

privilege under California Evidence Code § 980 and the presumption of confidentiality of marital communications under

California Evidence Code § 917. The trial court ruled that

Gaines could testify about any discussions between them

regarding the insurance fraud scheme as falling under the “future crimes” exception to the privilege, and also about her

observations of Edwards’ behavior on the nights in question,

but not about any other conversations between them. 

The following facts emerged from Edwards’ and Gaines’

testimony at trial, not including any information from their

testimony about their conversations with one another.

Edwards and Thomas conspired to defraud Edwards’ automobile insurer. They stripped his car of parts, and Edwards called 911 to report that he had been carjacked; the idea was to

collect $10,000 from the insurance company for the “stolen”

parts, and then replace them. The scheme went awry, however, because Thomas stripped so many parts that the insurance company deemed the car “totaled,” resulting in a smaller

payout (and loss of the car). Thomas and Edwards exchanged

threats and angry calls, including a call from Edwards to

Thomas on the night of his death, July 17. Bullets recovered

at the scene of the crime and from Thomas’ body were from

guns registered to Edwards. The night of the murder, Gaines

returned home to find Edwards in a “weird” mood and scrubbing his hands with laundry detergent. The next evening, July

16150 EDWARDS v. LAMARQUE
18, Edwards received a phone call from Thomas’ cousin,

threatening Edwards’ and Gaines’ lives. The cousin testified

that Edwards threatened to “fuck [him] up too.” Edwards

brandished a shotgun and paced around his apartment, staring

out the window, and eventually took Gaines first to a nearby

motel, then to Florida and finally to Michigan, where they

resettled. At trial, Edwards insisted that he had neither committed nor had anything to do with the murder, and that he

had given the guns to Thomas as collateral until he was able

to pay Thomas for his role in the insurance scam. 

Before trial, the police questioned Gaines, who told them

that she was prepared to testify that, during an exchange with

Edwards on July 17 about why he was washing his hands, he

had confessed to committing the murder. Meyers was aware

of this proposed testimony. 

Despite the trial court’s ruling as to the limited nature of

questioning that would be allowed regarding Edwards’ and

Gaines’ conversations, Meyers on several occasions asked

both Edwards and Gaines questions about their conversations

with one another on the nights of July 17 and 18. The colloquies that followed the prosecutor’s objections revealed that

Meyers did not understand what sorts of questions could lead

to a waiver of the privilege.1

The waiver issue first surfaced during Meyers’ crossexamination of Gaines. In an apparent attempt to fortify the

defense theory that Edwards was vigorously washing his

1The dissent argues that Meyers’ “questions did not seek to elicit any

confidential communications Edwards had with his wife,” Dissent at

16171-72, n.3, yet the very interchange it quotes shows Meyers compounding Edwards’ non-responsive answer by asking, “Did you tell her

anything?” Meyers may not have sought to elicit confidential communications, but his essentially open-ended question surely violated one of the

basic rules of witness examination (whether on direct or cross): “Certainly

no lawyer should ask a critical question unless he is sure of the answer.”

Francis L. Wellman, The Art of Cross-Examination 39 (1904). 

EDWARDS v. LAMARQUE 16151
hands on the night of the murder (July 17) because the couple’s dog had messed the carpet and Edwards had cleaned it

up, Meyers asked Gaines what reason Edwards had offered

for washing his hands on the night of July 17. The prosecutor

objected that allowing Gaines to testify about Edwards’ statements would waive Edwards’ marital privilege. At a sidebar,

Meyers asserted that the question regarding washing hands

was “not a confidential communication,” and that Gaines had

waived her marital privilege by taking the stand — an argument wholly irrelevant to whether her testimony would waive

Edwards’ privilege. The court ruled that Meyers was at risk

of allowing a waiver of the privilege and sustained the objection. Meyers withdrew the question. 

Later, however, during direct examination of Edwards,

Meyers asked Edwards if he had suggested to Gaines that she

go to her brother’s house on the night of the murder, and

Edwards answered, “Yes, I did.” Then, Meyers asked

Edwards about the exchange with Gaines about washing his

hands: “Did you tell her about what happened with the dog?”

Edwards answered, “About the dogs, yes.” The prosecutor did

not object to either of these questions. Thereafter, Edwards

testified about the cousin’s threatening phone call the next

night, and Meyers asked Edwards what he had told Gaines

upon receiving the 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.’ ” The

prosecutor objected for a second time. The court told Meyers

at sidebar that his question effectively waived Edwards’ privilege and thus had “opened the door” to further testimony from

Gaines about her discussions with Edwards on the nights in

question. Meyers again stressed his view that he was allowed

to ask Edwards about any communication that he did not

deem to be “confidential,” and that such questioning did not

open the door to the prosecution eliciting any statements from

Gaines as to her conversations with Edwards. The court

invited Meyers to provide relevant authorities supporting his

position the next morning. 

16152 EDWARDS v. LAMARQUE
Meyers arrived the next morning without any such authorities — indeed, without any authorities at all. The judge

directed Meyers’ attention to a California appellate court case,

People v. Worthington, 38 Cal. App. 3d 359 (3d Dist. 1974),

concerning the marital privilege and waiver. It became clear

that Meyers had not read it. When the court said, “Somebody

gave me some cases,” the prosecutor replied, “That was me,”

and Meyers added, “I’m reading those now.” When the court

offered Meyers additional time to review Worthington and

other cases, he replied, “I’ve pretty well looked at the general

parts. Both are attorney-client privilege, that I can see.” 

In the discussion that followed, Meyers continued to argue

his version of the marital privilege, in which he could elicit

“nonconfidential” testimony from Edwards about his discussions with Gaines, but prevent Gaines from testifying about

her version of the conversations. Meyers also attempted to

distinguish Worthington. The court ultimately ruled that the

privilege had been waived, and that the prosecution could

elicit testimony from Gaines about her discussions with

Edwards on the nights of July 17 and 18. 

Meyers then stated, “Well, one thing for the record, that

raises a significant I.A.C. 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 an inadequate representation of counsel.” The trial court disagreed, calling it a

“tactical decision.” Meyers responded, “It wasn’t a tactic. It

was a mistake.” 

Given the waiver of the marital privilege, the prosecution

was able to elicit the following additional damaging testimony

from Gaines: When she came home on the night of the murder, July 17, she asked Edwards why he was scrubbing his

hands, and, upon receiving no response, whether he had killed

Thomas. Edwards responded, “I’ll put it to you like this: you

don’t have to worry about hearing from him again.” 

EDWARDS v. LAMARQUE 16153
The jury returned convictions on the insurance fraud

counts, but deadlocked on the murder charge. One juror,

angered by another juror’s racial slur, changed her vote and

refused to convict.

Before retrial, Edwards successfully moved to have Meyers

replaced. See People v. Marsden, 2 Cal. 3d 118 (1970) (holding that defendant has the right to have counsel discharged

upon appropriate showing). Edwards argued that Meyers had

provided ineffective assistance by leading Edwards to open

the door to Gaines’ testimony. The court granted the Marsden

motion based on “discord” between Edwards and Meyers.

Edwards’ new counsel argued that there had been no waiver

of the privilege, that any waiver had been limited in scope and

that any waiver was the result of Meyers’ ineffective assistance. The court rejected all three arguments. 

At retrial, Gaines testified as she had in the first trial,

adding that when she asked Edwards whether he had killed

Thomas, he replied, “Yeah.” Edwards was convicted of murder, and filed a motion for a new trial, again arguing ineffective assistance of counsel. The trial court denied the motion,

ruling that Meyers had made a tactical decision. Edwards

appealed to the California Court of Appeal, which concluded

that Meyers had made a “reasonable tactical decision” and

affirmed the conviction. The California Supreme Court denied

a petition for review. 

Edwards filed a federal petition for habeas corpus, alleging

several alternate claims for relief, including ineffective assistance of counsel. The district court, adopting the recommendation of a magistrate judge, denied all grounds except the

ineffective assistance claim. The court concluded that

although it owed deference to the state court determination

that Meyers’ decision was “tactical,” that finding was clearly

erroneous. The court further concluded that Meyers was ineffective under clearly established Supreme Court precedent,

and that Edwards had been prejudiced. The court issued a

16154 EDWARDS v. LAMARQUE
judgment granting the petition as to the ineffective assistance

claim. The state timely appealed. We have jurisdiction under

28 U.S.C. § 2253. 

II. STANDARD OF REVIEW

This appeal is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254,

which provides that a federal court may not grant a writ of

habeas corpus on behalf of a person in state custody “with

respect to any claim that was adjudicated on the merits in

state court proceedings unless the adjudication of the 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.” 28 U.S.C. § 2254(d).

Under the ‘contrary to’ clause, a federal habeas court

may grant the writ 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.

Under the ‘unreasonable application’ prong, a federal habeas court may grant the writ 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 prisoner’s

case. 

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). State court

findings of fact are presumed to be correct unless the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).2

2Our dissenting colleague believes that § 2254(e)’s standard for reviewing state court factual determinations, which creates a presumption of

EDWARDS v. LAMARQUE 16155
We review the district court’s decision to grant the writ de

novo, and its findings of fact for clear error. Houston v. Roe,

177 F.3d 901, 905 (9th Cir. 1995). 

III. DISCUSSION

A. The Right To Effective Assistance of Counsel Has

Been Clearly Established by the Supreme Court 

“It is past question that the [right to effective assistance of

counsel] qualifies as ‘clearly established Federal law, as

determined by the Supreme Court of the United States.’ That

the [governing] test . . . requires a case-by-case examination

of the evidence obviates neither the clarity of the rule nor the

extent to which the rule must be seen as ‘established’ by this

Court.” Williams, 529 U.S. at 391 (internal citations and quotations omitted). The parties do not dispute that the California

Court of Appeal applied the correct clearly established

Supreme Court law, and we so hold. 

[1] We summarize the relevant principles that govern here.

“[T]he [Sixth Amendment] right to counsel is the right to

accuracy that can be rebutted only by “clear and convincing evidence,”

may be at odds with § 2254(d)’s separate “unreasonable determination of

the facts” standard for granting petitions. In the dissent’s estimation,

employing the “unreasonable determination” language of § 2254(d), the

state courts’ determinations were not unreasonable. However, the Supreme

Court recently suggested that the standards merge: “Under the Antiterrorism and Effective Death Penalty Act of 1996, [petitioner] may obtain

relief only by showing the [state] conclusion to be ‘an unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.’ Thus we presume the [state] court’s factual findings to be

sound unless [petitioner] rebuts the ‘presumption of correctness by clear

and convincing evidence.’ ” Miller-El v. Dretke, 125 S.Ct. 2317, 2325

(2005) (emphasis added). Even if the Supreme Court had not recognized

the merger of the two standards and we based our analysis solely upon

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004), we would reach the same

conclusion: the state courts’ determinations were not reasonable. 

16156 EDWARDS v. LAMARQUE
effective assistance of counsel.” McMann v. Richardson, 397

U.S. 759, 771 n. 14 (1970). “Counsel . . . can . . . deprive a

defendant of the right to effective assistance, simply by failing

to render adequate legal assistance.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal citation and quotations

omitted). “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined

the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.” Id.

[2] “[A] defendant must [first] show that counsel’s performance was deficient[,] [which] requires showing that counsel

made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.”

Id. at 687. Further, “the proper standard for attorney performance is that of reasonably effective assistance.” Id. Put

another way, counsel must perform within “the range of competence demanded of attorneys in criminal cases.” McMann,

397 U.S. at 771. 

The Court has also emphasized that “[j]udicial scrutiny of

counsel’s performance must be highly deferential,” and that

“[a] fair assessment of attorney performance requires that

every effort be made to . . . reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time.” Strickland, 466 U.S.

at 689. This means that “a court 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.”

Id. (internal quotation omitted). 

[3] If a defendant can show that counsel’s actions constituted ineffective assistance, he must then show that “there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.

EDWARDS v. LAMARQUE 16157
A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. 

If Edwards successfully satisfied the Strickland two-part

test, he is entitled to habeas relief. However, AEDPA and

recent case law require significant deference to the reasoning

of the state court. 

B. The First Strickland Prong: Ineffective Assistance 

1. The District Court Correctly Rejected the State

Court’s Finding that Meyers’ Acts Reflected “Tactical”

Decisions

The California Court of Appeal discussed the substance of

Edwards’ ineffective assistance claim in the following passage:

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. 

The district court held that the state court’s conclusion that

Meyers made a “tactical” decision to allow Edwards to waive

the privilege was a “factual finding entitled to deference

16158 EDWARDS v. LAMARQUE
under the AEDPA.” Edwards contests this conclusion, arguing that whether Meyers’ acts were tactical or not is a mixed

question of law and fact, which can be distinguished from a

purely factual question. 

It is academic how the state court’s determination is categorized, because either way it is entitled to significant deference — either as a factual determination to be reviewed under

the “unreasonable determination of the facts” prong of

AEDPA, or as a legal conclusion, to be reviewed under the

“unreasonable application” prong. In either case, the question

is whether the state court’s determination can be viewed as

reasonable. And either way, the district court was correct that

the state court’s ruling cannot stand. 

California Evidence Code § 980 establishes a marital privilege as follows:

[A] spouse . . . has a privilege during the marital

relationship and afterwards to refuse to disclose, and

to prevent another from disclosing, a communication

if he claims the privilege and the communication

was made in confidence between him and the other

spouse while they were husband and wife. 

The privilege, however, may be waived:

[T]he right of any person to claim [the marital privilege] . . . is waived with respect to a communication

protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant

part of the communication or has consented to disclosure made by anyone. 

Cal. Evid. Code § 912. 

[4] Meyers’ responses to the prosecutor’s objections and

the trial judge’s comments reveal that he fundamentally misEDWARDS v. LAMARQUE 16159
understood the marital privilege, and thus lacked the legal

understanding necessary for a competent tactical decision.

Meyers plainly believed that he could prevent Gaines from

testifying as to certain “confidential” conversations between

her and Edwards (such as Edwards’ alleged confession to

her), but that he could pick and choose other parts of the conversations they had and elicit testimony as to Edwards’ versions of those exchanges to bolster his defense. Thus, when

the prosecutor first objected to the court that Meyers was

“going into the area of confidential marital communication”

by having Edwards report the conversation he had with

Gaines about the washing of his hands, Meyers’ revealing

response was, “No, no. That is not a confidential communication.” Later, after causing Edwards to waive his privilege,

Meyers argued to the court, “My feeling is every statement

made between a husband and wife is not a confidentiality

privilege.” Indeed, Meyers’ questioning (and arguments to the

judge) demonstrate that he believed that he could simultaneously prevent Gaines from testifying as to the specific

exchange about the dog mess (the exchange where, in Gaines’

version, Edwards confessed to her), and yet draw from

Edwards his version of that very same exchange.3 Meyers thus

sought to introduce Edwards’ explanation for cleaning his

hands (that their puppy had messed the floor) as well as the

communication in which Edwards relayed to Gaines the threat

from Thomas’ cousin to kill the two of them. When the prosecution objected, Meyers insisted upon his view of the law,

and, as the record indicates, appeared astonished by the trial

court’s explanation of how waiver actually worked. After the

court advised him that he could not characterize “certain communications as confidential” merely because they might con3Meyers also directly asked Gaines what Edwards told her when she

asked why he was washing his hands — the exchange that Gaines later

would testify led to Edwards’ confession. Without the prosecutor’s objection regarding the marital privilege, Meyers might well have elicited testimony about the confession at this moment. What tactical approach, if any,

this represented is impossible to discern. 

16160 EDWARDS v. LAMARQUE
cern a particular subject, Meyers’ surprised response was,

“That’s a pretty good issue.” He even stated that Gaines had

waived the spousal privilege “by being here and taking the

stand” — a comment with no bearing on whether Edwards,

the defendant in the trial, had waived his privilege of preventing his wife from testifying. Gaines’ own marital privilege

was irrelevant, and Meyers’ invocation of it further demonstrates his lack of understanding of the doctrine. 

[5] Fundamentally, Meyers had no conception of the most

basic premise of the spousal privilege and could therefore not

make competent tactical decisions regarding it. He did not

recognize that all private communications between spouses

are “presumed to have been made in confidence.” North v.

Superior Court of Riverside County, 8 Cal. 3d 301, 310 (Cal.

1972) (citing 8 Wigmore, Evidence, § 2336 [McNaughton

rev. ed. 1961]); cf. Blau v. United States, 340 U.S. 332, 333

(1951) (“[M]arital communications are presumptively confidential”); Wolfle v. United States, 291 U.S. 7, 14 (1934);

United States v. Strobehn, 421 F.3d 1017, 1021 (9th Cir.

2005) (Rymer, J.) (noting that “[f]ederal common law

assumes that private communications between spouses are

intended to be confidential, and thus privileged”). Correspondingly, Meyers showed no understanding that courts narrowly construe the privilege because it “prevent[s] the

admission of relevant and otherwise admissible evidence” and

impedes the search for truth. People v. Sinohui, 28 Cal. 4th

205 (Cal. 2002); cf. Strobehn, 421 F.3d at 1021. Given Meyers’ evident misconceptions about the nature and scope of the

marital privilege, Meyers was incapable of making competent

tactical decisions of the sort the state court (and the dissent)

imagines. It is no surprise, therefore, that when the trial court

invited Meyers to provide authorities for his view, after he

already opened the door to Gaines’ damaging testimony, he

had none to put forward.4

4The dissent relies on Meyers’ extemporaneous attempt to distinguish

Worthington to argue that he could reasonably have thought that waiver

EDWARDS v. LAMARQUE 16161
[6] Finally, upon grasping that he had led his client to

waive the privilege, Meyers immediately asserted that he had

made a mistake.5 His confession of error is, of course, not

itself dispositive. See Morris v. California, 966 F.2d 448,

456-457 (9th Cir. 1991) (determining whether a decision was

tactical based on counsel’s statement and additional facts).

Nonetheless, when considered in conjunction with the evidence reviewed above, it is further evidence of his confusion.6

[7] The district court correctly found that the court of

appeal’s conclusion that Meyers made a tactical decision to

waive the privilege is rebutted by clear and convincing evidence in the record. Such a finding means that the state court

determination 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)(2); Miller-El v.

Dretke, 125 S.Ct. 2317, 2325 (2005).7

of the privilege as to one communication did not open the door to disclosure of the other marital communications since Worthington dealt with

dueling versions of a single conversation. To so argue posits that Meyers

made a tactical decision ignorant of the key marital privilege case, which

the trial judge had to show to him; and credits his post-hoc creativity in

trying to undo the harm he had already incurred by opening the door.

Nothing in the record shows that Meyers made a decision to ask his high

risk questions informed by a minimally competent understanding of the

relevant law of marital privilege. It shows a misguided blunder. 

5According to Edwards’ second attorney, Meyers later offered to so testify. 

6Edwards highlights several other instances in the trial where Meyers

betrayed confusion about the rules of evidence and needed to be assisted

by the trial judge. For example, he was confused about: the admissibility

of evidence of a defendant’s character as opposed to evidence of a victim’s character; hearsay; laying the foundation for testimony; and hearsay

and expert testimony. None of these episodes is directly relevant, but they

do reinforce the picture of Meyers as an incompetent trial attorney. 

7The second trial judge had a slightly different theory, that Meyers

made a tactical decision to risk waiving the privilege. Our foregoing analysis applies equally to this theory. We further note that if Meyers really

wanted to pursue a strategy of nearly waiving the privilege without actu16162 EDWARDS v. LAMARQUE
2. Alternatively, the District Court Correctly

Concluded that Meyers’ Actions, if Tactical, Were

Objectively Unreasonable

[8] The district court alternatively found that even if the

state court reasonably concluded that Meyers had made a tactical decision to waive the privilege, the state court unreasonably applied Strickland in finding such tactics themselves to

be reasonable. The district court recognized the “wide latitude” given to counsel in determining trial strategy, and the

importance of considering counsel’s behavior from the perspective counsel himself had, rather than with hindsight. Nevertheless, it concluded that “[e]ven if it was a conscious

strategy, Meyers’s decision to waive petitioner’s right to

assert the marital privilege was so completely uninformed and

misguided that a reasonably competent lawyer would not have

done the same thing in like circumstances.” We agree. 

The district court recognized that the Supreme Court and

this circuit have applied a cost-benefit analysis to such tactical

decisions. See, e.g., Darden v. Wainwright, 477 U.S. 168, 186

(1986) (“Any attempt to portray petitioner as a nonviolent

man would have opened the door for the State to rebut with

evidence of petitioner’s prior convictions.”); Mak v. Blodgett,

970 F.2d 614, 619 (9th Cir. 1992) (“[N]o risk would have

been incurred by presenting the proferred evidence.”).

As the district court found, if we apply a cost-benefit analysis to Meyers’ decision to waive the privilege, the ledger is

one-sided. Gaines was openly hostile to Edwards; she had testified to the police that he had confessed to the murder to her,

ally doing so, the reasonable course would have been to seek, through in

limine motions, to define the exact scope of the privilege and what would

and would not waive it. See, e.g., People v. Dorsey, 46 Cal.App.3d 706,

718 (1975) (“The [marital privilege] claims should have been asserted and

ruled upon in camera.”). 

EDWARDS v. LAMARQUE 16163
and Meyers was aware of that information. Indeed, it was

Gaines who, five years after the murder, tipped off the police

that her husband was the murderer. To offset this near-certain

and extremely damaging potential testimony, Meyers could

hope to demonstrate that Gaines knew that she too had been

threatened by Thomas’ cousin. But as the district court

observed, the jury would know either way that Thomas’ cousin had threatened Edwards and Gaines, and that would be

reason enough to explain why Edwards and his wife fled the

state.8 The additional testimony that Meyers apparently hoped

to elicit was not even likely to come: Meyers appeared to

hope, for example, that Gaines would testify that Edwards had

said he was cleaning his hands because the dog had messed

the rug, but when allowed to testify as to the exchange, she

did no such thing, and instead — consistent with her statements to the police — testified that her question led quickly

to his confession to the murder. 

Nevertheless, if we accept that Meyers made a tactical decision to waive, the question does become closer. Given the

extremely strong circumstantial evidence against Edwards, an

attorney in Meyers’ position would be forced to consider

numerous different strategies, all of which could be risky or

prone to failure, in an effort to win an acquittal. However,

nearly all of the supposed advantages of Gaines’ testimony

could be reaped without her testimony. Edwards could testify

himself that he was cleaning up a dog’s mess, and it is difficult to see how Meyers could hope to supplement that testimony with Gaines’ perspective. It comes down to the

difference between Edwards testifying that Thomas’ cousin

threatened his and his wife’s life, and Edwards giving that tes8The dissent implausibly argues that Meyers could counter the inculpating circumstantial evidence only by contending that Edwards and his wife

fled because they had been threatened. However, even if Meyers reasonably viewed the threat as an important piece of evidence in favor of his

client, there was no need for him to waive Edwards’ privilege to provide

an alternative explanation for his and Gaines’ sudden departure. 

16164 EDWARDS v. LAMARQUE
timony supplemented by Gaines’ testimony that she was

aware of the threat. When balanced against the near-certainty

of Gaines’ testifying as to Edwards’ confession to the murder,

the tactical decision to allow the privilege to be waived was

objectively unreasonable. 

The California Court of Appeal’s opinion gives little explanation for why it concluded that Meyers made a “reasonable

tactical decision” to allow the privilege to be waived. The

main reason offered is that there was “strong evidence”

against Edwards — apparently suggesting that desperate

straits call for desperate measures. However, for the adversary

process to function effectively, there must be some limits on

counsel’s willingness to take enormous risks, and Meyers’

decision falls outside those limits. 

The state seeks to support its view by reference to Davis v.

Woodford, 384 F.3d 628 (9th Cir. 2004). In that case, we concluded that defense counsel’s decision to allow an expert to

testify despite the expert’s statement that he might offer “possibly damaging information” was a reasonable tactical decision. Id. at 648. Upon learning that the expert might do so,

counsel sought a continuance, and when it was denied, made

the decision to allow the expert to testify. We ruled that

“[w]hen the effort to postpone the [proceedings] and bring in

a new psychiatric expert failed, defense counsel quite reasonably decided that the risk of a slight unknown was preferable

to presenting no psychiatric testimony . . . . [Defendant]

needed someone who could . . . put together the pieces to

demonstrate, as [the expert] did, that [defendant] was not

entirely a creature of his own making, that he had psychological problems, and that hope existed for some type of rehabilitation.” Id. 

Contrary to the state’s position, Davis actually illustrates

how a decision to allow the admission of damaging testimony,

depending on numerous factors, can be either eminently reasonable or clearly unreasonable. See Strickland, 466 U.S. at

EDWARDS v. LAMARQUE 16165
693 (“[A]n act or omission that is unprofessional in one case

may be sound or even brilliant in another.”). In Davis, counsel

had a strong incentive to put on an expert who could help

illustrate why his client “was not a creature of his own making,” but was faced with a situation where his only option was

an expert who had warned that he would be entirely candid

and, possibly, say things damaging to the defendant’s case. In

such a situation, the benefit was clearly strong, because without any expert testimony about the defendant’s psychology,

there was a gaping hole in the defense; whereas the risk of

harmful statements was, if not remote, at least uncertain —

counsel was not aware what the expert might say. 

In this case, the balance tilts the other way. The benefits to

be gained from Gaines’ testimony (or Edwards’ statements as

to what he told her) are few. It is on this side of the equation

that there is uncertainty: Meyers could not know whether

Gaines would provide the sort of exculpatory testimony he

apparently hoped she would. On the other side of the equation

there is no uncertainty (or at least very little): Meyers knew

that Gaines, a hostile witness, was prepared to testify that her

husband had confessed to the murder to her. Davis thus illustrates how in this instance, given these facts, Meyers acted

outside the bounds of professional competence.

[10] Regardless of whether Meyers’ acts are viewed as

reflecting a tactical decision to waive the privilege or as a

plain mistake, the California Court of Appeal’s conclusion

that his performance was adequate was an unreasonable application of clearly established Supreme Court precedent, or was

based on an unreasonable determination of the facts in light

of the evidence presented at trial. 

C. The Second Strickland Prong: Prejudice 

We must now consider whether Edwards was prejudiced by

Meyers’ ineffective assistance. Because the court of appeal

found no ineffective assistance, it never reached the prejudice

16166 EDWARDS v. LAMARQUE
inquiry.9

 The first question, then, is whether there is anything

to defer to in making this determination. 

[10] The district court found that the court of appeal had

not addressed the prejudice issue, but that the trial court had.

The second trial judge, upon denying the motion for a new

trial, stated, “I am convinced that without the testimony that

I allowed in, that the verdict may well have been a different

one. So that I want to make it clear that if I’m wrong on this

[the first Strickland prong], I do think it’s reversible from my

standpoint.” The district court found this perspective “highly

persuasive” and “entitled to deference” because “it is the last

(and only) reasoned opinion of the state court on the issue of

prejudice.” We agree on both counts. Because the trial court’s

view was the “last reasoned decision” by a state court on the

issue of prejudice, we owe it deference, Campbell v. Rice, 408

F.3d 1166, 1170 (9th Cir. 2005); and we are independently

persuaded of the existence of prejudice in any event. As the

district court noted, a defendant’s own confession is the most

damning sort of evidence available against him. See, e.g., Arizona v. Fulimante, 499 U.S. 279, 296 (1991) (quoting Bruton

v. United States, 391 U.S. 123, 139-40 (1968)) (“A confession

is like no other evidence. Indeed, the defendant’s own confession is probably the most probative and damaging evidence

that can be admitted against him . . . . Certainly, confessions

have a profound impact on the jury, so much so that we may

justifiably doubt its ability to put them out of mind even if

told to do so.”) (internal quotations omitted). It is true that the

circumstantial evidence against Edwards was extremely

strong here, including testimony from the victim’s cousin that

Edwards threatened to “fuck you up too.” Upon retrial without any of Gaines’ testimony, he might well be convicted; but,

as the second trial judge himself noted, it is impossible to be

9The state’s argument that the California Court of Appeal did conduct

a prejudice inquiry is meritless; the court of appeal had no reason to reach

the prejudice inquiry after finding no ineffective assistance, and its opinion cannot plausibly be read to contain an alternative holding. 

EDWARDS v. LAMARQUE 16167
free from doubt in the verdict given the improper admission

of Gaines’ testimony. For example, the prosecutor emphasized the confession during closing arguments, even reading

Gaines’ statement to the police verbatim. It is clear at least

that the prosecutor believed that this evidence was of central

importance.10

[11] If we defer to the trial court’s conclusion of prejudice,

it is established. Alternatively, our independent inquiry leads

us to conclude that prejudice is established here. The probability of a different result is “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. 

IV. CONCLUSION

We affirm the district court. Meyers’ acts were not tactical

but simple incompetence; alternatively, if tactical, they were

objectively unreasonable; and there is a reasonable probability

that but for Meyers’ ineffective assistance, Edwards would

have received a different verdict. 

AFFIRMED.

10The state argues that the fact that the first jury hung proves no prejudice. The dissent argues further that the hung jury is probative of the effectiveness of Meyers’ “tactical” decision. Both arguments are irrelevant.

Edwards was convicted upon retrial, and it is this conviction from which

he seeks relief. Further, as the prosecution recognized at the time, the mistrial was almost certainly the result of nullification. 

16168 EDWARDS v. LAMARQUE
RYMER, Circuit Judge, dissenting: 

I part company because in my view, the state courts did not

make an unreasonable determination of the facts in light of

the record before them when they found that John Meyers,

Edwards’s counsel at his first trial, made a tactical decision in

asking Edwards questions on the stand that waived the marital

communications privilege. Nor did the state courts apply

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

in concluding that this was not an unreasonable strategy for

Meyers to pursue, given the substantial amount of circumstantial evidence implicating Edwards that had already been presented, an implicit confession by Edwards to the victim’s cousin that he was the murderer, Edwards’s unexplained flight

with his wife two days after the murder, and Meyers’s reasonable belief, in light of the state of California law at the time,

that he could elicit testimony from Edwards about his conversations with his wife on the night after the murder without

opening the door to his wife’s version of their conversation on

the night of the murder. Therefore, I disagree with the decision of the district court granting Edwards’s habeas petition,

and dissent from the majority’s contrary disposition. 

At the outset, the district court reviewed the state courts’

finding that Meyers made a tactical decision, not a mistake,

under the “clear and convincing evidence” standard of 28

U.S.C. § 2254(e)(1) rather than, as we have since clarified in

Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2004),

for whether that determination was unreasonable under

§ 2254(d)(2).1 The district court held that Meyers’s declaration, his stipulated testimony that he had made a mistake during the first trial, his statements to the trial judge at sidebar

during the first trial, and his apparent ignorance of the nature

1As the majority notes, the Supreme Court in Miller-El v. Dretke, 125

S.Ct. 2317, 2325 (2005), intimates that the standards under §§ 2254(d)(2)

and (e)(1) may merge. However, the Court’s passing recitation of the

AEDPA standard does not undermine Taylor, which is binding on us. 

EDWARDS v. LAMARQUE 16169
and scope of the marital communications privilege, amounted

to clear and convincing evidence that the state courts’ finding

was incorrect. See 28 U.S.C. § 2254(e)(1). However, the state

courts’ finding should not have been reviewed under

§ 2254(e)(1) because Edwards introduced no new evidence in

the district court. Instead, as we explained in Taylor, when a

federal habeas petitioner introduces no new evidence and

relies solely on the state court record in challenging a state

court factual determination, the proper inquiry is whether the

state court made “an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Only if a state court factual

determination survives this intrinsic review and the petitioner

presents new evidence in district court that was not in the

state court record may the district court proceed to the extrinsic review contemplated by § 2254(e)(1) and ask whether the

new evidence clearly and convincingly shows that the state

court factual determination was incorrect. Edwards presented

no new evidence in the district court that was not in the state

court record, and did not seek an evidentiary hearing in the

district court to elicit any such evidence; accordingly, the

proper question is whether the California Court of Appeal’s

determination that Meyers was not ineffective was based on

an unreasonable determination of the facts in light of the evidence before it. 

Here, two state trial judges and three state appellate judges

found that Meyers’s decisions were tactical. While this is a

close call and we may or may not have made the same judgment ourselves, that is not the question. The question is

whether the state courts’ determination was unreasonable. I

can’t say that it was. 

Unlike the situation in People v. Dorsey, 46 Cal.App.3d

706 (1975), in which the defendant’s trial counsel failed to

raise the marital communications privilege at all, Meyers

clearly knew about the privilege and timely raised it before

trial began. Edwards argues that Meyers was ineffective

16170 EDWARDS v. LAMARQUE
because he was ignorant about the operation and scope of the

privilege and of how waiver operates under California law.

However, the state courts concluded that Meyers took a calculated risk.2

 It appears from the record that Meyers believed

that he could question Edwards about his conversation with

his wife on July 18, the night after the murder, without waiving the privilege as to Edwards’s different conversation with

her on July 17, the night of the murder. The confession

occurred during the conversation on July 17. Meyers withdrew an earlier question about Edwards’s July 17 conversation with his wife regarding the reason Edwards was washing

his hands, and thereby avoided opening the door to Edwards’s

wife’s testimony about Edwards’s confession to her during

that same conversation. The question Meyers did pursue with

Edwards was about the telephone call he received the next

evening and what he told his wife about it, which elicited

from Edwards evidence that both he and his wife had been threatened.3

 At the point when Meyers asked this question, he was

2Our review of the state courts’ decisions should not be influenced by

the fact that Meyers fell on his sword during the first trial. After the trial

judge ruled that his questions had opened the door, Meyers immediately

asserted “that’s inadequate representation of counsel.” If anything is tactical, that claim surely is, and it demonstrates how quickly Meyers could

think on his feet. 

3

In fact, the question Meyers asked Edwards did not call for Edwards

to reveal any confidential communications he had with his wife. Meyers

asked Edwards: 

Q: Where was Kemet [Edwards’s wife] at that time [the night

after the murder]? 

A: She started hollering, “What’s going on? What’s going on?

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

Q: Did you tell her anything? 

A: 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.” 

(RT 545-46.) As this excerpt demonstrates, Edwards’s answers were not

responsive to Meyers’s questions. Meyers’s questions did not seek to elicit

EDWARDS v. LAMARQUE 16171
faced with a considerable amount of circumstantial evidence

of Edwards’s guilt, an implicit confession related by the victim’s cousin — who testified that Edwards told him “And I’ll

fuck you up too” — and Edwards’s flight with his wife two

days after the murder for no apparent reason other than consciousness of guilt. The only way Meyers could combat the

inevitable inferences to be drawn from this evidence was to

defuse the flight issue by making it look like Edwards and his

wife fled because they had been threatened, not because he

was guilty or because his wife was scared of him instead of

a threat by a third party. 

Meyers also argued in state court that eliciting evidence

from Edwards about a different conversation with his wife

that occurred on a different day about a different topic —

threats to Edwards and his wife — did not waive the privilege

as to all conversations between Edwards and his wife that

took place after the murder. Meyers’s position on this point

was far from unreasonable. When the trial judge directed the

prosecutor’s and Meyers’s attention to People v. Worthington,

38 Cal.App.3d 359 (1974), Meyers argued that Worthington

was distinguishable because the dueling versions of a communication between a husband and wife in that case all had to do

with a single conversation. Meyers was quite correct on this

point, and was not unreasonable in maintaining that Worthington could not possibly stand for the proposition that a

waiver of the marital communications privilege as to one conversation on one day about one subject opens the door to

any confidential communications Edwards had with his wife. Thus, nothing Meyers asked Edwards on the stand indicates that he expected

Edwards to waive the privilege through his responses, and it is not clear

how Meyers acted unreasonably in asking the questions that he did. The

question “Did you tell her anything?” calls for a “yes” or “no” answer,

which is not a privileged communication. The fact that Edwards spontaneously waived the privilege by giving non-responsive answers to Meyers’s

questions does not mean that Meyers was unreasonable in asking those

questions. 

16172 EDWARDS v. LAMARQUE
admission of confidential marital communications that

occurred during a different conversation on a different day

about a completely different subject. That Meyers turned out

to be wrong in his position because the trial judge disagreed

with him about the scope of the waiver does not make the calculated risk he took unreasonable given that, had he succeeded, he would have been able to explain Edwards’s flight

and maybe create reasonable doubt by suggesting that the person who made the threat was the murderer instead of

Edwards. 

Finally, Edwards was not convicted on the first-degree

murder charge in the first trial. The jury may have hung due

to unrelated racial tension among the jurors, as Edwards contends, or it may have hung because of reasonable doubt about

whether Edwards was the murderer. The point is that no one

knows why Edwards was not convicted in the first trial, but

that he was not is at least some indication that Meyers’s tactical decision may have worked. 

I would reverse, and part company with my colleagues,

because I cannot conclude that the state courts applied Strickland in an objectively unreasonable manner or made an unreasonable determination of the facts in light of the state court

record in deciding that Meyers made a reasonable tactical

decision that resulted in waiver of the marital communications

privilege.

EDWARDS v. LAMARQUE 16173