F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

W I L L A R D J A M E S H A L L , Petitioner-Appellee

,

v.

F

. W. H A W S , R espondent-Appellant. No. 14-56159

D.C. No. 3 :05-cv-00010-W QH-J MA

OPI NI ON

A ppeal from the United States District Court for the Southern District of California W illiam Q. Hay es, District J udg e, Presiding

Arg ued and Submitted October 19, 2015 Pasadena, California

F iled J uly 3, 2017

B efore: Harry

Preg erson and Consuelo M. Callahan, Circuit J udg es and Stanley Allen B astian, * District J udg e.

Opinion by

J udg e Harry

Preg erson; Dissent by

J udg e Callahan

* T h e Ho n o r ab le Stan ley A llen B astian

, District J u d g e f or th e U .S. District Co u rt f

o r th e Eastern District o f W ash i n g to n , sittin g b y d esig n atio n

.H A L L V

. H A W S

2

SUMMARY * *

Habeas Corpus

The panel affirme d the district court’s order g ranting W illard J ames Hall’s motion to reopen his h a beas proceeding s u n d e r Fed. R. Civ. P. 60(b)(6) and its order conditionally g ranting Hall’s first amended habeas corpus petition challeng ing his California state-court conviction for first-deg ree murder u n less the State of California g rants H all a new trial within 90 day s.

The panel held t h a t H a ll’s Rule 60(b) motion was not inconsistent with AEDPA’s bar on second or successive petitions, AEDPA’s statute of limi t a tions, or AEDPA’s

ex h austion requirement. The panel held that the district court did not abuse its discretion in reopening Hall’s cas e u nder Rule 60( b)(6), in this ex traordinary case involving a petitio n e r w hose h abeas petition was dismissed without reaching the merits of his claim, while his co-defendant was
g ranted habeas relief on the same claim based on t h e s a me

error from the same trial. The panel could not find fault with the district c ourt’s d etermin at i on that Hall, a pro se litig ant, proceeded dilig ently or that the delay between the d ismissal of his petition and the filing of his m o t i o n to reopen was reasonable.

The p anel also held that habeas relief is w arranted. The panel held that the tri a l c o u r t’s use of California J ury I nstruction Criminal 2.15, which a l l owed the jury to infer

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.H A L L V

. H A W S 3

g uilt of murder f

rom e v i d e n ce that the defendants were in possession of recently stolen pr o p e r t y plus slig ht corroborating ev i d e n ce, is an error of constitutional
mag nitude, and that the California Court of Appeal’s determination otherwise was objectively unreasonable. The panel held that it was a n unreasonable application of clearly established federal law for the California Court of Appeal to evaluate h armles s n e s s under the less string ent standard set forth in People v. W

atson , 46 Cal.2d 818 (1956), rather than under the more string ent Chapman v. California

, 386 U.S. 18 (1 967), standard for reviewing errors of constitutional
mag nitude. Analy

z i n g harmlessness pursuant to Brecht v

. Abrahamson , 507 U.S. 619 (1993), the panel concluded that the state court’s h armless e rror determination w as also unreasonable because the instructional error resulted in actual prejudice, as there are g r ave doubts about whether t h e jury would h ave f

ound Hall g uilty b ey o n d a reasonable doubt without the unconstitutional instruction.

J udg e Callahan dissented. She wrote that the majority repeats the error of Sherrors v. W oodford

, 425 F

. App’x 617 (9th Cir. 2011), which g ranted t h e h a b e as petition of Hall’s co-defendant based on the same supp o s ed error, even in the face o f additional facts demonstrating Sherrors was wrong ly decided. She wrote that the majo r i t y i gnores that the codefendant was retried without the suspect ins t r u ction a nd convicted, and inv ents a

n e r ror of constitutional mag nitude where none e x ists, b rushing aside AEDPA standards and the Supreme Court’s repeated instructions to defer to reasonable
state court decisions. She a lso wrote that Hall is not deserving of Rule 6 0(b) relief, which impermissibly rewards his inaction and g amesmanship, and u nfairly imposes the cost of his retrial on the state.H A L L V

. H A W S

4

COUNSEL

Matthew Mulford, Deputy Attorney General; Kevin Vienna, S u pervising Deputy Attorney General; J ulie L

. Garl an d

, Senior Assistant Attorney General; Office of the Attorney General, San Dieg o, California; for Respondent-Appellant.

Holly A. Sullivan and Robert H. R ex rode, San Dieg o, California, for Petitioner-Appellee.

OP INION

PREGERSON, Circuit J udg e :

This is a rare and ex traordinary case

. On J uly 7, 2001, Ronnie Sherrors and Petitioner W illard H all as co-defendants

were convicted of f

irst deg ree murder in state court. The trial court’s jury

instructions included California J ury I nstruction Criminal (“CAL J I C”) 2 .15, which a llowed the jury to infer
g uilt of murder from evide n c e that defendants were in possession of recently stolen property p l u s s l ig ht corroborating

evidence.

On J u ly 1 6, 2 003, on She r rors’s and Hall’s consolidated direct appeal, the California Court of Appeal determined that the trial court erred whe n i t instructed the jury on CAL J I C 2.15. People v. Hall

, No. D038857, 2003 W L 21661225, at *6 (Cal. Ct. A pp

. J uly 16, 2003) (unpublished). I n so concluding

, the C ourt of Appeal relied on People v

. Prieto
, which held that “proof a defendan t w a s in conscious possession of recently stolen p roperty simply does not lead naturally a n d log ically to the conclusion the defendant

com m i t ted a rape or murder.” 30 Cal. 4th 226, 229 (2003)H A L L V

. H A W S 5

(quoting People v. Barker

, 91 C a l. App. 4th 1166, 1176 (2001)). The California Court of Appeal, however, affirmed the convictions of Sherrors and H a l l apply ing the People v

. W atson , 46 Cal. 2d 818, 836 (1956), harmless error standard.

After ex hausting state court r emedies, Hall filed h is o wn habeas petition i n f

e d eral court raising a CAL J I C 2.15 instructional error claim. L ater Hall quit pursuing this h abeas petition beca u s e he believed that he “co-submitted” another federal habeas petition w ith Sherrors. Sherrors, who filed the petition, was g ranted h a

b eas relief. Hall, who had relied on Sherrors to a dvance their instructional error claim on Hall’s behalf, found himself out in the co l d

. B ut the U.S. district
court judg e W illiam Q. Hay es in San Dieg o recog niz ed these

ex traordinary circumstances

. The district court g ranted Hall’s motion t o r eopen his orig inal habeas proceeding s under F ederal Rule of Civil Procedure 60(b)(6) and g ranted Hall’s habeas petition consistent with our court’s earlier gr a n t o f habeas r elief to Sherrors. F or the reasons set forth below, we affirm.

BACK G ROUND

Here’s the story about how the case c ame about. I n September 1999, after ex periencing financial problems a nd developing a d

rug habi t , Stephen F o th moved back to his home town of San Dieg o to “ get his life back in order.” F oth’s close friend, Grace K o, permitted him to stay with her. On the afternoon of September 29, 1999, F oth told Ko he was g oing to see a

nother f r iend to borrow some money and would
return later. F oth borrowed Ko’s black Audi A4, h e r c e l l phone, and her Visa card so that he could put some g as in the

car. The nex t d ay , F oth’s body was f o und in a pumpkinH A L L V

. H A W S

6

patch. H e had b l e d t o death after being stabbed
approx imately

83 times.

Nine day s after the b ody w a s found, L e na Hix on told a friend that she witnessed “something

. . . pretty bad” and that
two men had threatened he r l i fe

. The friend notified the police a fter Hix on refused to do so. At first, H i x o n t o l d the police that she committed F oth’s murder with t wo men named B enjamin W i l s on and Terrence Smallg reen. A few day s later, Hix on chang e d her st o r y a nd told the police that Ronnie Sherrors and W illard Hall were involved in the murder. Sherrors a

nd Hall were c harg ed with the murder of Stephen F oth. 1 Hix on e ntered into a plea ag reement in which she ag reed to plead g uilty to assault with a d eadly weapon and conspiracy to sell cocaine, and to testify ag ainst Sherrors and Hall.

Althoug h inconsistent at times, Hix on ’ s t e s t i m o ny w a s t he key to the prosecution’s case. Here is L ena Hix on’s story :

On September 2 9
, 1 999, F oth approached Hix on a nd asked if she k

new where he could buy some rock cocaine. She d id and the two d ro v e i n Ko’s Audi to a n apartment where Sherrors and Hall were livin g. H i x on, Sherrors, a nd Hall h andled drug sales for Hix on’s b oy friend, Michael W a shing ton. Sherrors

, H a l l, and F oth d rove off tog ether in
t he Audi, leaving her behind. A fter 15 to 20 min u t e s , Sherrors and Hall returned in the Audi without F oth. Hix on believed tha t Fo th had loaned the Audi to Sherrors and H all in ex chang e for drug s. She g ot in the A udi with Sherrors a nd Hall to drive around and smoke some marijuana.

1 Hall an d Sh erro rs w ere rep resen ted b y co u n sel at trial.H A L L V

. H A W S 7

After driving around in the Audi with Sherrors and Hall, Sherrors drove off the hig hway and p arked the Audi in a dirt lot. Sherrors and H al l t h e n o pened the trunk, from which F oth climbed out. H ix on testified that she demanded to know what was g o ing on, b ut Sherrors threatened her and g r abbed her hands, breaking

two of her acry

lic fing ernails.

Then, Sherror s b e gan to stab F oth, while F oth was tussling with Hall. Sherrors forced Hix on to stab F oth. Sherrors a n d H a l l stripped F oth and threw his body into the bushes. They put F oth’s clothes in the trunk and d r ove away in the Audi. Hix o n , S h e r r o r s, and Hall stopped at a g a s

s tation convenience store where Hall was thwarted try ing to use F oth’s ATM card.

Katherine Davis, Hix on’s fe l l o w inmate at L os Colinas W o men’s Detention Center, also testified at trial. Hix on h ad spoken to Davis on several occasions about the incidents on September 2 9. I n these conversations, H i x o n ag ain pointed the f ing er at Sherrors and Hall, but her story to Davis differed from the story

she told to the police. Hix on’s story to Davis implied that H ix o n was much more involved in the crime than the story she told to the police.

The State’s case ag ainst Hall relie d overwhelming ly on Hix on ’ s s t ory

. I n addition to H ix on’s version of events, the State’s evidence ag ainst Hall included ( 1) testimony that H all

was seen sitting in the passeng er side of the Audi d ay s a fter the crime; (2) testimony that S h er rors a nd Hall had seen a newscast mentioning the A udi, and the nex t morning the Audi

was found burned; and (3) F oth’s hig h school class ring f ound in a p air of Hall’s pant s

. No ne of the evidence found at the crime scene—a shirt, a p a i r of siz e eig ht sneakers, aH A L L V

. H A W S

8

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

Crucial to the federal habeas appeal b efore us now, at the close of trial, the state jury w a s i n structed on CAL J I C 2.15, which states:

I f y ou find that a defendant was in possession of rece n tly stolen property , the fact of that possession is n o t by itself sufficient to prove

an inference that the d efendant is g uilty of the crime o f m u r der. B efore g uilt may be inferred, there must be c orroborating evidence tending to prov e a d efendant’s g uilt. However, th is corroborating evidence need

on l y be slig ht a

nd n e e d not by itself be sufficient to warrant an inference of g u ilt.

As corroboration, y ou may c onsider the attributes of p ossession, time, place a nd
manner; that the defendant had an opportunity
to c ommit the crime charg ed; the defendant’s conduct; his false or contradictory statements, if any ; and any other statements that may have been made with reference to the property

.

On J u ly 7
, 2001, the jury

convicted Sherrors and Hall o f first-deg ree murder. Sherrors and Hall w ere both sentenced to life without the possibility of parole, plus one year.

P ROCEDURAL HISTORY

On J uly 1 6
, 2 0 03, on consolidated direct appeal, the California Court of Appeal found that it was error to instructH A L L V

. H A W S 9

the jury pursuant to CAL J I C 2.15, but affirmed Sherrors a nd Hall’s convictions un d e r t h e People v

. W atson , 46 Cal. 2d 818, 836 (1956), harmless error standard. People v. Hall

, No. D038857, 2003 WL 21661225, at *6 (Cal. Ct. App. J uly 16, 2003) (unpublished). The California Supreme Court summarily

denied their petitions for review.

On J anuary 3, 2 005, Hall filed a p ro se ha b eas petition under 28 U.S. C. § 2254 in federal district court. On March 15, 2005, Hall filed his F irst Amended Petition f or Writ o f Habeas Corpus. His petition alleg ed the follow i n g c laims: (1) the trial court g ave an imp roper modification of jury instruction CAL J I C 2.15; (2) the trial court g ave an improper modification of jury instruction CAL J I C 8.81.17; and (3) the trial c o u rt p r ovided an incomplete verdict f orm to the jury

. The California A ttorney Gen e r al ’ s Office and the W arden F .W

. Haws (“the State”) moved to dismiss the petition on the
g round that Hall had f

ailed to e x haust t h e second claim in
state court.

B e cause Hall h ad fa i led to demonstrate g ood cause for failing to ex haust the second claim, see R h i n e s v. W eber

, 544 U.S. 269, 278 (2005), the district c ourt informed Hall on J anuary 25, 2006 of hi s t w o options: (1) voluntarily dismiss his entire federal petition and return to state court to ex haust his unex hausted claim, or (2) formally aba n don his

unex h a usted claim a

nd proceed with his two ex h a u s ted claims. On F ebruary 28, 2006, H all filed a motion for a 30- day ex tension to file a formal abandonment, which the district
court g ranted. Thereafter, Hall made n o f u r t her filing s. He did not file a formal abandonment or a ny other motion. As a result of Hall’s failure to comply with th e d istrict court’s order, the district c o u rt d ismissed his petition without prejudice on May

19, 2006.H A L L V

. H A W S

10

Meanwhile, in 2005, Sherrors, H a ll’s co-defendant, was also advancing a fede ra l habeas petition, propounding the

same CAL J I C 2.15 arg um e n t as Hall. Hall believed that he

was a “co-submitter” in t h e se filing s based on Sherrors’s representations to him a

nd their history of shared appeals. On November 2, 2007, the d istrict c o u rt g ranted Sherrors’s habeas petition, f

inding that the u s e o f CAL J I C 2.15 consti t uted prejudicial constitutional error. The State appealed to the Ninth Circuit.

On May 2 9, 2009, Hall filed a “motion to join” Sherrors’s

case. The district court construed the motion to join as a Rule 60(b) motion to reopen his h a b eas proceeding s. The district
court dismissed the motion without prejudice

, stating that Hall co u l d re-file within 60 day s of receiving notice o f the Ninth Circuit’s decision in Sherrors’s appeal. On Aug ust 31, 2011, the State served o n Hall a copy of this c ourt’s decision in Sherrors v

. W

o o dford

, 425 F

. App’x 61 7 (9th Cir. 2011), which affirmed the district court’s g rant of habeas r e l ief to Sherrors.

W ithin 60 day s of r eceiving n o t i c e of our decision in Sherrors

, Hall re-filed his motion to join Sherrors’s case. I n his motion, Hall stated tha t h e “ h a d a g ood faith reason to be l i e v e his interests were included in any outcome o f [ Sherrors’s case] ” bec a u s e Sherrors had communicated to Hall and to the district c ourt that the petiti o n w a s “cosubmit t ed,” and b ecause “throug hout the state courts [ process]
, counsel for both co-defendants used this lang uag e of joinder to ensure that both defendants benefitted from any

success throug h their appeals.” After the Stat e opposed the motion, a pro se Hall filed a motion to concede to the State’s opposition.H A L L V

. H A W S 11

On May 22, 2012, the district court appointed counsel for Hall b ecause “a denial of Hall’s motion under Rule 60(b) may raise sig nificant due process issues.” W ith the a ssistance o f counsel, Hall filed a motion for relief from judg ment under Rule 60(b). Hall arg ued that apply ing the district court’s May 19, 2006 judg ment dismissing his petition prospectively was

no long er equitable under Rule 6 0(b)(5), and t h at

ex traordinary

circumstances ex isted under Rule 60(b)(6).

The dist r i c t court g ranted Hall’s motion under Rule 60(b)(6), finding that ex traordinar y circumstances—an i n t e r v e n i n g c h a n g e i n l a w , i

. e

. , S h e r r o r s v

. W oodf ord —warranted relief from judg ment. The district
court then concluded that habeas relief was warranted based

on the erroneous instr u ct i on of CAL J I C 2.15. T h e State appealed both the g rant of Rule 6 0(b)(6) r e l i e f and h abeas relief.

D ISCUSSION

I. Rule 60(b) Motion

A d istrict court’s g rant of r elief from judg ment under F ederal Rule of Civil Procedure Ru l e 60(b) is reviewed for abuse of discretion. Casey v. Albertson’s, Inc
, 362 F .3d 1254, 1 2 5 7 (9th Cir. 2004). “A d istrict c o urt a buses its discretion if it does n ot a

pply the c orrect law or if it rests its decision on

a clearly erroneous finding of material fact.” Id

. Any questions o f law underly ing the district cour t ’ s decision a re reviewed de novo. Jeff D. v. Kempthorne

, 3 65 F .3d 844, 850–51 (9th Cir. 2004).H A L L V

. H A W S

12

Under Rule 60(b), a district c o u rt may r elieve a party from a final judg ment in certain c ircumstances. 2 F e d. R. Civ. P. 60(b). I n the habeas contex t, Rule 60(b) applies to the

ex tent that it is not inconsistent with the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Gonza l e z v

. Crosby

, 545 U.S. 524, 529 (2 0 0 5 ) (citing 28 U.S.C. § 2254 Rule 11 and F ed. R. Civ. P. 81(a)(2)). AEDPA poses sig nificant hurdles for a Rule 60(b) petitioner, b u t “ R u le 60(b) has an unquestionably valid role to play in h abeas cases.” Gonzalez , 545 U.S. at 534.

2 T h e district co u rt m ay reliev e a p arty f ro m a f in al j u d g m en t f

o r th e f o llo w in g reaso n s:

(1 ) m istak e, in ad v erten ce, su rp rise, o r ex cu sab le

n eg lect;

(2 ) n ew ly d isco v ered ev id en ce th at, w ith r e a so n ab le d ilig en c e , co u ld n o t h av e b een d i sco v ered in tim e to

m o v e f o r a n ew trial u n d er Ru le 5 9(b );

(3 ) f rau d (w h eth er p r ev io u sly called in trin sic or

ex trin sic), m isrep resen tatio n , o r m isco n d u ct b y an

o p p o sin g p arty ;

(4 ) th e j u d g m en t is v o id ;

( 5 ) t h e j u d g m en t h as b een satisf ied

, released o r d isch arg ed ; it is b ased o n a n e a rlier j u d g m en t th at h as b een rev ersed o r v acated ; o r ap p ly in g i t p ro s p ectiv ely is n o lo n g er eq u i tab le; o r

(6 ) an y o th er reaso n

th at j u stif

ies relief

.

Fed . R. Civ . P . Ru le 6 0 (b ).H A L L V

. H A W S 13

The State arg ues that Hall’s Rule 60(b) motion r uns afoul of three of AEDPA’s provisions: (1) the bar o n second o r successive petitions under 28 U.S.C. § 2244(b)(1); (2) the
one-y ear statute of limitations under 2 8 U.S.C. § 2244(d); a nd (3) t h e ex haustion r

ule under 28 U.S.C. § 2254(b). I n addition, the State argu es t hat the district court abused its discretion by g rant i ng relief u nder Rule 60(b)(6). F or the reasons discussed below, we disag ree.

A. AEDPA’s Bar on Second or Successive Petitions

Under A E D P A ’ s s e c o n d o r s u c c e s s i ve petition provisions,
any claim that has been adjudicated in a prev ious petition
must be dismissed. 28 U .S.C. § 2 244(b)(1). The State arg ues that Hall’s Rule 60(b) motion is a disg uised successive habeas petition that asserts a previously adjudicat e d claim and therefore the district court sho u ld have dismissed it pursuant to § 2244(b)(1).

W h ile ther e is n o brig h t-line rule for disting u ishing between a bona fide R u l e 60(b) motion and a disg uised second or successive habeas petition, the Supreme Court’s decision in Gonzalez v

. Crosby informs our analy sis. See Jones v. Ryan
, 733 F .3d 825, 834 (9th Cir. 201 3 )

. I n Gonzalez

, the district court dismissed Gonz alez ’s h abeas petition as untimely

, a n d t h e Eleventh Circuit Court o f Appeals denied a certificate of a ppealability

. 545 U.S. at 527. After a chang e in law reg arding the statute of limitations, Gonz a lez fil e d a Rule 60(b) motion challeng ing the district court’s dismissal. Id

. B oth the district court and the Eleventh Circuit ruled that Gonz alez c ould not seek Rule 6 0 (b) relief because the motion was a disg uised second or success i ve p e t ition. Id

. at 528. The Supreme Court disag reed. T h e Court held that Gonz alez ’s Rule 60(b) motion challeng ed theH A L L V

. H A W S

14

d i s t rict court’s earlier ruling on a non-merits aspect of t h e proceeding s—statute of limitations—and therefore it was not equivalent to a successive habeas petition. Id . at 533–34.

Thus, a ccording to Gonzalez

, a bona fide Rule 60(b) motion “attacks, not the s u b s t a nce of the federal court’s resolution of a cla i m o n t h e merits, but some defect in the integ rity of the federal habeas procee d i n gs

. ” Id

. at 532. I n

co n trast, a second or successive habeas corpus petition “is a filing that c ontains o ne or more ‘clai m s ,’” defined a s “a s s e r t e d federal bases for relief from a state court’s judg ment of conviction.” Id

. Put a nother way , “if neither the motion itself nor the federal judg ment f rom which it seeks relief substantively addresses the federal g rounds for setting

a side the movant’s state conviction, allowing the moti o n t o proceed as denominated creates n o inconsistency with the habeas statute or rules.” Id . at 533.

Hall’s motion conforms to Gonzalez’s description of a true Rule 60(b) motion. F irst, the fed e r al judg ment from which H all seeks relief—the order dismissing his petition for failure to comply with the d istrict c ourt ’ s J u ly 25, 2006

ex h austion order—does n ot substantively address the federal
g rounds for setting as i de his conviction. The dismissal was based o n H all’s failure t o c o mply with the district court’s

ex h austion order; it was a non-merits-based ruling . Second, Hall’s R u l e 60(b) motion o n ly ex plains the circumstances why his orig inal petition was dismissed, i.e. that Hall failed
to comply w ith the court’s ex haustion order because he believed h e had co-submitted another habeas petit i o n with Sherrors. Hall’s motion to reopen does not pre s e n t any substantive g round for setting his conviction asid e

. Therefore, becaus e n e ither the d istrict c ourt’s dismissal nor Hall’s motion to reopen address the merits for setting Hall’sH A L L V

. H A W S 15

convict i o n aside, allowing the motion to proceed is not inconsistent with AEDPA. I d . at 533.

Our conclusion is further suppor t e d by this court’s decision in Butz v. Mendoza-Powers

, 474 F .3d 1193 (9th Cir. 2007) (per curiam). I n B u t z , Petitioner B utz applied for authoriz ation to file a second or successive ha b e a s petition under 28 U.S.C. § 2254 a f t e r h is orig inal petition was correctly dismissed for failure to pay the filing fee. 474 F .3d
at 1194. B u tz claimed that his f irst petition h ad b e en dismissed due to neg lect by his prior counsel, despite B u tz ’s

own dilig ence. Id

. T h is court held that when “the district
court dismisses t h e [ habeas] petition for failure to pay the filing fee or to c omply with t h e court’s orders

, the district
court d oes not thereby reach the ‘merits’ of the c laims presented in the petition a nd a Rule 60(b) motion challeng ing the dismissal is not treated as a second or successive petition.” Id

. (emphasis a d d ed). L ike in Butz
, H all “does not seek to a dd new claims to his p e tition or t o adduce new evidence or c ite new law in support of cla i m s p r e viously adjudicated on the merits.” Id

. at 1195. L ike in Butz
, H all simply failed to comply with the court’s order and, as a r esult, his petition was dismissed. L ike in Butz
, we conclude that the district court’s dismi s s al of the petition does not preclude Hall from filing a Rule 60(b) mot i o n

. See id

. (“B ecause a Rule 60(b) motion by B utz would n o t be the e quivalent of a second or successive habeas petition, his appl i c a tion for authoriz ation to file such a petition is unnecessary .”). 3

3 T h e S tate attem

p ts to d istin g u i sh Bu tz b y p o in tin g o u t th at Bu tz (1 )

aro se f ro m a g atek eep i n g m o tio n f iled u n d er 2 8 U.S.C. § 2 2 4 4 (b )(3 )(A );

an d (2 ) co n cern ed a pro ced u ral dism i ssal w ith p rej u d ice rath er th an a d ism issal w ith o u t p rej u d i ce. No t h in g in Bu t

z su g g ests th at its h o l d i n g w as lim ited to g atek eep in g m o tio n s or d ism issals w ith p rej u d ice an d th e StateH A L L V

. H A W S

16

I n sum, we ag ree w it h the district court that Hall’s Rule 60(b) motion is a tru e R u le 60(b) motion and d oes not run afoul o f AEDPA’s bar ag ainst second or successive p etitions.

B

. AEDPA’s Statute of Limitations

The State arg ues t h a t e ven if Hall’s Rule 60(b) motion

were a true Rule 60(b) moti o n (meaning it did not raise a “claim” within the meaning of Gonzalez )

, it is s till an “application ” f

or relief to which the district court was

re q u ired to apply AEDPA’s statute of limitations before considering any of the d i s c retionary p r ovisions contained in Rule 6 0(b). 4 W e reject this contention. As the Supreme Court made clear in Gonzalez

, an “‘applicati o n ’ for h abeas relief is a filing tha t contains one or more ‘claims.’” Gonzalez

, 5 45 U.S. at 530. B ecause Hall’s Rule 60(b) motion did not contain a

n y “claim,” supr a I .A.1, it is not an application for habeas relief, and therefore AEDPA’s statute of limitations does not a p p ly S ee id

. a t 533 (“[ W ] hen no ‘claim’ is present, there is no basis f or conte n d i n g that the Rule 60(b) motion should be treated like a ha b e a s corpus application.”).

h as of f ered n o arg u m en t as t o w h y th ese tw o f

acts w ere cru cial t o th e

co u rt’ s d ecisio n

.

4 T h e State, rely in g o n a f

oo tn ote f ro m Go n za lez

, believ es Hall’ s Ru le 6 0 (b ) m otio n t o b e an “ ap p licatio n ” b ecau se th e d istrict co u rt’ s d ism issal

o f Hall’ s o rig in al petiti o n rested o n a co rrect ru lin g rath er t h an an

erro n eo u s ru lin g

. In th is Go n za lez f oo tn ote, t h e Co u rt f

u rth er ex p lain ed th e term “ o n th e m erits,” statin g th at a h ab eas p etitio n er d o es n o t m ak e a

“ claim ” w

h en h e “ m erely asserts th at a p rev io u s ru lin g w h i ch p reclu des

a m erits d eterm in atio n

w as in erro r.” Go n za lez v. Cro sb y , 5 4 5 U.S. 5 2 9
, 5 3 2 n .4 (2 0 0 5). T h e f

o otn o te sim

p ly p r o v i d e d an ex am

p le o f w h en a claim ex ists; it w as n o t

in ten d ed as th e d ef

in itio n o f a claim

.H A L L V

. H A W S 17

C. Exhaustion under AEDPA

I n its reply brief, the State a rg ues that Hall’s petition contained an unex hausted claim both before the dismissal a nd after the district court g rant e d r e l ief under Rule 60(b), a nd therefore, the use of Rul e 6 0(b) to r eopen Hall’s case is inconsistent with AEDPA.

I t is true that Hall initially p resented an une x hausted claim in his habeas p etition, which prompted the district court to order H all to either voluntary dismiss the e ntire petition o r formally abandon the unex hausted claim. Hall requested an

ex tension to file a formal abandonment, sig naling a desire to proceed with the second o p t i o n

. W hen Hall contacted the district court ag ain on May 29, 2009 with the intent to “join” his co-defenda

n t ’ s successful habeas petition, Hall mentioned only th e C A L J I C 2.15 claim, which Hall had already

ex h austed in state court in 2003. Hall did n ot mention the

unex h a usted claim. The district court, liberal ly c onstruing this pro se petitioner’s motion, interpreted Ha l l ’s m o tion to join as a “ motion to reopen h is Peti t i o n for W rit of Habeas Corpus filed in this c ase on J anu a r y 3
, 2005 and to proceed

on the ex h austed f

irst and third claims for r elief.” I n other words, the distric t co u rt interpreted Hall’s motion to join a s both a motion to re o p e n and a formal abandonment of the second u nex hausted claim. This was a fair a n d log ical interpr e t a tion of Hall’s motion g iven the procedural history of the c ase. As noted above, Hall had previously indicated a desire to aba n d o n t h e unex hausted claim. His “motion to join” confirmed this desire. Given that no unex hausted claim

was presented or considered

, we find no inconsistency with AEDPA.H A L L V

. H A W S

18

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

As stated above, Rule 6 0(b) “allows a party to seek relief from a final judg ment, and request r eopening of his c ase, under a limited set of circumstances.” Gonzalez

, 5 45 U.S. at 528. Rule 60(b)(6), the provision under which Hall broug ht his motion, permits reopening for “any

. . . reason that justified relief” other than the e numerated reasons set forth in Rule 60(b)(1)–(5). 5 F ed. R. Civ. P. 60(b). A movant seeking relief u nder Rule 60(b)(6) must show “ex traordinary circumstances justify ing the reopening o f a final judg ment.” Gonzale z , 5 4 5 U.S. at 5 35. A lthoug h such circumstances

occur rarely in the habeas conte x t , Rule 60(b)(6) can a nd should be “used sparing ly a s an equitable remedy to prevent manifest injustice. ” U n i ted States v. Alpine Land & Reservoir Co. , 984 F .2d 1047, 1049 (9th Cir. 1993).

“[ T] he decision to g rant Rule 60(b)(6) relief is a case-by

case inquiry that requires the trial court to intensively balance

numerous factors, including the competi ng policies of the finality of judg ments and the incessant command of the court’s conscience that justice b e done in lig ht of all the facts.” Phelps v. Alameida

, 569 F

. 3 d 1 120, 1133 ( 9th Cir. 2009) (quoting Stokes v. W illiams

, 475 F .3d 7 3 2, 7 3 6 (6th Cir. 2007)). I n apply in g R u l e 60(b)(6) in h a beas cases, we have considered six f

a c tors described in Phelps v. A lameida : (1) a showing of ex traordinary circumstances, such as a chang e in intervening law; (2) the petitioner’s ex ercise o f dilig ence in pursuing the issue during f ederal h abeas

5 B ef o re th e d istrict co u rt, Hall also a rg u ed f o r relief u n der Ru le 6 0 (b )(5 ). T h e d istrict co u rt d id n o t g ran t relief u n d er Ru le 6 0 (b )(5 ) an d Hall do es n o t arg u e t h a t i t ap p lies n o w

. T h eref o re, w e do n o t ad d ress

w h eth er relief

u n der Ru le 6 0 (b )(5 ) w o u ld h av e b een ap pro priate.H A L L V

. H A W S 19

proceeding s; (3) i nterest in finality ; ( 4) delay between the finality of the judg m e n t and the motion for Rule 6 0(b)(6)

r e l ief; (5) deg ree of connection b etween the ex traordin a r y circumstance and the decision f o r which reconsideratio n is
soug h t; and (6) comity

. See id

. at 1135–40. B ut we have stated that these factors are not “a rig id or ex haustive checklist.” Id

. a t 1135. Rather, “ Rule 60(b)( 6 ) is a g rand reservoir o f equitable power, and it affor d s courts the discretion and power to vacate judg ments whenever such action is appropriate to accompl i s h j ustice.” Id

. (internal citations and quotation marks omitted).

This is an especially unique case in which a perfect storm produced a situation in which Hall would hav e been subject
to “manifest injustic e” if not f or Rule 60(b)(6). See A lpine Land & Reservoir Co.
, 984 F .2d at 1049. Most notably

, this

case involves a p etitioner whose habeas petition was dismissed without reaching the merits of his claim, while his co-defendant w as g ranted habeas relief on the same claim based on the same error from the same trial. G iven these key facts, Hall’s motion for relief under Rule 60(b)(6) is b ased on

mo r e t h a n just a p lea that a misunderstanding o ccurred. These ex traordinary circumstan c e s are the reason for Hall’s failure to comply with t h e d istrict court’s J anuary 25, 2006 order, and theref

ore, the reason his petition w as d ismissed. W e cannot say that the district court was w rong in
recog ni z i n g that ex traordinary circumstances warrant the reopening of Hall’s case here. See Buck v. Davis , 137 S. Ct. 759, 778 (2017) (“I n determining whether ex traordinary circumstances are p resent, a court may consider a wide r ang e of factors,” including

“the risk of injustice to the parties.”).H A L L V

. H A W S

20

Moreover, we cannot find fault with the d i s trict court’s determination that Hall p r oceeded dilig e ntly or that the delay between the dismissal of Hall’s petition and the filing of his motion to reopen w as reasonable. W e have said that reasonable dilig ence “does not require an overz ealous o r

ex treme pursuit of any and every avenue of relief;” i n s t e ad, it “requires the effort that a r easonable person mig h t be

ex p ected to deliver under his or her particular circumstances.” Brooks v. Y

at e s , 818 F .3d 532, 535 (9th Cir. 2016) (quoting Doe v. Busby

, 661 F

. 3d 1001, 1015 (9th Cir. 2011)). Hall, a p r o se litig a

nt, 6 relied on his co-defendant’s assurances tha t his claims were being advanced in the c o

- d e fendant’s
p r oceeding s. The California Court of Appeal and t h e Californi a Supreme Court adjudicated Hall’s case in conjunction with that of h is co-defendant’s

. W i t h this in mind, and having g reat familiarity with the procedural history

a nd c ircumstances of this case, the district court conclu d e d that Hall was dilig ent and his delay was reasonable.

F urther, w e disag ree with the State’s c o n tention that the district court “minimiz ed” the State’s interests in finality a nd comity

. I n Sherrors , this court ruled that the very same trial and resulting conviction was c onsti tutionally c ompromised. The State co u l d n o t in g ood faith arg ue reliance on the finality o f Hall’ s conviction because there had been no final ity for Sherrors, Hall’s c o-defendant. According ly

, the State’s interest in finality deserved “little weig ht.” Cf. Buck

, 137 S. Ct. a t 779 (noting that the Sta t e ’s i nterest in finality “deserve[ d] little weig ht” where the State ac k n o wledg ed error

6 W h en Hall f

iled h is orig in al f

ed eral h ab eas p etitio n o n J an u ary 3
, 2 0 0 5
, h e w as p ro se

. L ater o n , on March 1 2
, 2 0 1 2
, th e d istric t c ou rt ap p o in ted co u

n sel to assist Hall in reo p en i n g h is h ab eas p ro ceed in g s u n der Ru le 6 0 (b ).H A L L V

. H A W S 21

in similar cases)

. S i m i l arly

, the State cannot arg ue that a second retri a l w i l l harm and p rejudice the State. The State receive d t his court’s decision affirming the g r ant of h abeas relief in Sherrors v. W oodford on March 31, 2011. Thereafter, it chose to opp o s e Hall’s motion to join on December 12, 2011. Had the State truly been c oncerned with efficiency

, it could h ave opted to retry Sherrors a n d H a ll tog ether in lieu of its opposition to the m o t i o n t o join a nd subsequent appeal.

F or these reasons, w e affirm the district court ’ s g rant o f Rule 60(b) relief to Hall.

II. Habeas Relief

A. AEDPA Review of the State Co u r t’s Instructional Error Determination

W e review a district court’s decision on a petition f or writ of habeas corpus de novo. Deck v. Jenk i n s , 8 14 F

. 3d 954, 978 ( 9th Cir. 2016). B ecause Hall’s p e tition is g o verned b y AEDPA, Hall can prevail o n a claim that was a djudicated on the merits in state c o u r t o nly if h e can show that the adjudication:

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established F e deral law, as determined by the Supreme Court of the United States; o rH A L L V

. H A W S

22

(2) resulted in a decision that was based on an unreasonable determination of the fa c t s in lig ht o f the evidence presented i n the State court proceeding

. 28 U.S.C. § 2254(d).

Under the “contrary to” c lause, a federal habeas court may g rant h abeas relief if the state court arri v e s a t a conclusion o pposite to that reached b y the Supreme Court on

a question o f law or if the state court d ecid e s a case differently than the Supreme Court has on a set of materially i n d i s t ing uishable facts. W illiams v. Taylor

, 529 U.S. 362, 412–13 (2000). Under the “unreasonable application” clause,

a federal court may g rant habeas relief if the state court identifies the correct g overning le ga l p rinciple from the Supreme Court’s decisions but un reasonably applies that principle to the facts of the petitioner’s case. Id

.

On direct appeal in Hall’s case, the Calif o rn i a Court o f Appeal determined that it was error to instruct the jury on CAL J I C 2.15, but affirmed Hall’s conviction, concluding that the error w as harmless. I n d oing so, the California Court o f Appeal did not find the error to be of constit u t i o nal
mag nitude, and consequently applied t h e harmless error standard set forth in People v. W atson

. 7 As discussed below,

7 T h e W atso n stan d ard i s u sed to rev i ew n on

- co n stitu t io n al, trial ty

p e

erro rs. W

a tso n req u ires a rev i ew in g co u rt t o d eterm in e w h eth er “ it is

reaso n ab ly p ro b ab le th at a resu lt m o re f av orab le to t

h e ap p ealin g p arty

w o u ld h av e b een reach ed in th e ab sen ce o f th e erro r.” 4 6 Cal. 2d 8 1 8
, 8 3 6 (1 9 5 6). In co n trast, th e m o re strin g en t s t a nd ard

, u n d er Ch ap ma n v. Ca lifo rn ia
, is u sed t o rev iew erro rs o f co n stitu tio n al m ag n itu d e, w

h ich
req u ires a rev iew in g co u r t t o d ecid e w h eth er th e erro r w as “ h arm less b ey o n d a reaso n ab le d o u

b t.” 3 86 U.S. 1 8 , 2 4 (1 9 6 7 ).H A L L V

. H A W S 23

the California Co u r t of A ppeal’s decision was an unreasonable application of clearly established federal law.

The Supreme Court has stated that the Due P r o cess C lause of the F ourteenth Amendment “protects the accu s e d

a ga i n st conviction ex cept upon proof bey ond a reasonable doubt of every fact necessary to constitute the c ri m e with which he is charg ed.” Francis v. Franklin

, 4 71 U.S. 307, 313 (1985) (quoting In re W

inshi p , 3 97 U.S. 358, 364 (1970)). “This bedrock, ax iomatic and e lementar y constitutional principle prohibits the Sta te from using evidentiary presumptions in a jury c h a r g e that have the effect o f relieving the State of its burden of persu asion bey ond a reasonable doubt of e ve r y essential element of a crime.” Id

. (internal quotation marks, citations, and alternations omitted).

I n this case, the State u sed CAL J I C 2.15, 8 a jury charg e that allow s , b ut does not require, a jury to infer a specified conclusion if the g overnment h a s prove d certain predicate facts, also known as a permissive infer e n c e. S chwendeman

v. W all e n stein
, 971 F .2d 313, 316 (9th Cir. 1992). “A permissive inference violates the Due Process Clause only if

8 A s a rem in der, CA L J IC 2 .1 5 states: If y o u f in d th at a d ef

en d an t w as in p o ssessio n o f recen tly sto len p ro p erty , th e f act o f th at p o ssessio n is n o t b y itself su f

f icien t to p ro v e an in f

eren ce th at th e d ef

en d an t is g u ilty o f th e crim e o f m

u rd e r

. B ef

o re g u ilt m ay b e in f

erred

, th ere m

u st b e

co rro b o ratin g ev i d en ce ten d in g to p ro v e a d ef en d a n t ’s g u ilt. Ho w ev er, th is co rro b o ratin g ev id en ce n eed o n ly b e slig h t an d n eed n ot by itself b e

su f f icien t to w arran t an in f

eren ce o f g u ilt.

A s co rro b o ratio n , y o u m ay co n sid er th e attrib u tes o f p o ssessio n , tim e, p lace an d m an n er; th at t

h e d ef en d an t ha d an o p p o rtu n ity to co m m i t th e crim e ch a r g ed ; th e d ef

en d an t ’ s co n d u ct; h is f alse o r co n trad icto ry statem en ts, if an y ; an d an y o th er statem en ts th at m ay h av e b een m ad e w i th ref eren ce to th e p ro p erty

.H A L L V

. H A W S

24

the sug g ested conclusion is n ot one that reason and common

sense justif

y i n l ig ht of the proven facts before the jury

. ” Francis
, 471 U.S. at 314; see also Cty. Court of Ulster Cty. v

. Allen

, 442 U.S. 140, 156–57, 165 (1979) (ex plaining th at a lack o f “rational connection” between the presumed fact a nd the proven facts would re n d e r s uch a permissive inference invalid u nder the Due Process Clause). Put another way , “[ a] permissive inference is constitutional so long as it can be said ‘with substantial assurance’ that the i n ferred fact is ‘more likely tha n n o t t o flow from the proved fact on which it is made to depend.’” United States v. Rubio-Villareal

, 967 F .2d 294, 296 ( 9th Cir. 1 9 9 2 ) (en banc) (quoting Ulster Cty.
, 442 U.S. at 166 n.28).

I n P eople v. Prieto
, the California Supreme Court h eld that u se of CAL J I C 2.15 in non t h ef t o ffenses is improper because “[ p] roof a defendant was in conscious possession o f recently stolen property simply does not lead n a turally and logically to the conclusion the d efendant committed a rape o r

m u r d e r.” 30 Cal. 4th 2 26, 249 (2003) (emphasis added) (internal quotations omitted) (quoting People v. Barker

, 91 Cal. A pp. 4th 1166, 1 176 (2001)). H e r e , the California Court of A ppeal, rely ing o n P r i e t o , held that it w as error to instruct the jury on CAL J I C 2.15. T he California Court o f Appeal failed to recog ni z e, however, that the instructional error was of constitutional mag nitude. 9

9 Calif o rn ia co u rts h av e d isag reed th at th i s in stru ctio n al erro r is o f a

co n stitu tio n al m ag n itu d e. S

ee, e.g

. , Peo

p le v. Ha yes , No

. D0 6 07 8 1, 2 0 1 3 W L 3 1 8 7 2 3 0 , at * 2 0 (Cal. Ct. A p p. J u n e 2 5
, 2 0 1 3 ) (u n

p u blish ed ) (“ Ou r Su p rem e Co u rt h as rep eated l y h eld th at th e W a t so n stan dard ap p lies i n th is

co n tex t, an d h as ex p ressly rej ected th e co n ten tio n th at th e erro r in q u estio n is o n e o f co n stitu

t io n al m ag n itu d e.” (in tern al citatio n s o m itted )); Peo p le

v. Mo o re , 51 Cal. 4 th 1 1 0 4
, 1 1 3 2

– 3 3 (2 0 1 1 ) ( a p p l y i n g th e W a tso nH A L L V

. H A W S 25

Under clearly established Sup r eme Court law, the trial
court violated Hall’s federal d ue p rocess rig hts by instructing the jury that it could presume Hall murdered F oth from the fact that Hall possess ed F oth’s property (plus “slig ht” corroborating evidence) because the presumed fact doe s n ot follow from the facts established. See Francis
, 471 U.S. at 314–15; Ulster Cty.
, 442 U

. S

. 1 5 6–57. Althoug h the Prieto
court did not ex pressly discuss federal due process, Prieto relied on P eople v. Barker

, which does discuss it, and Prieto used the same sort of lang u ag e that the Supreme Court used in Francis and Ulster County to describe when a permissive inference jury instruction is unconstituti o n a l

. An inference that is not“natural[ ] or log ical[ ] ,” as Prieto d escribed, is

ex a c tly the kind of inference n ot j u s t i fied by “reason o r

common sense,” see F

r a n cis
, 471 U .S. at 314, a nd not “flow[ ing ] from the proved fact,” see Ulster Cty.
, 442 U .S. at 166 n.28.

The dissent asserts that the instructional error in this case is o nly one o f state law because Prieto n ever say s that the permiss i v e inference from CAL J I C 2.15 is “irrational.” Dissent at 41–42. B ut this overly c r i t ical arg ument about word choice misses the point. Fran c i s never uses the word “irrational.” And whi l e Ulster County refers to a “rational connection” between inferred fact and proved fact, 442 U.S.
at 156–57, it a lso ex plains that whether “the p resumed f act is

more likely than not to flow from the proved fact” is how we determine wheth e r a permissive inference is constitutional. 442 U.S. at 166 n.28. Ultimately

, the seminal Supreme Court

cases o n this is s u e a l l say the same thing : a permissive inference violates due proc e ss when the presumed f act does

stan d ard an d reaso n i n g th at Prieto d o es n o t m ean “ d raw in g a co n n ectio n b etw een p ossessio n

an d g u ilt is irratio n al”). W e d isag ree.H A L L V

. H A W S

26

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

, 442 U.S. at 166 n.28.

The relevant inquiry to determin e w hether the instructional e rror w as of constitutional mag n itude is whether the sug g ested conclusion—that Hall murdered F oth—is o ne that reason and com m o n sense justify in lig h t of the proved fact that Hall was in possession o f F oth’s ring some time a fter F oth was killed. Proof that Hall pos s e ssed F oth’s r ing does
not make it “more likely than n ot” that Hall murdered F oth. The use o f CAL J I C 2

. 1 5 i n this case constitutes an instructional erro r of constitutional mag nitude, and the California Court of A p p e al’s determination otherwise was objectively unreasonable. See Ulster Cty.
, 442 U.S. at 166. 1 0

10 T h e d issen t arg u es th at th e Calif orn ia Co u rt o f A

p p eal d id n o t ad d ress Hall’ s claim th a t th e j u ry in stru ctio n v io lated th e f ed eral

co n stitu tio n , so th ere is n o reaso n ed d ecisio n o n th at claim

. A cco rd in g ly

, th e d issen t co n ten d s th at w e sh o u ld u se th e g ap

- f ill i n g a p p r o ach f

ro m Ha rrin g to n v. Rich ter , 5 62 U.S. 8 6 (2 0 1 1 ), w h ich ap p lies w

h en th ere is n o

reas o n e d d e cisio n on a p articu lar claim

. W e d isag ree an d n o t e th at th ro u g h ou t th e len g th y litig atio n o f th is case, th e State n ev er h as tak en th e p o sitio n th at Ha rrin g to n ap p lies.

T h e H a rrin gto n g a

p

- f illin g ap p ro ach ap plies w

h en th e state co u rt f

ails
to set f o rth an y reaso n in g f

o r d en y in g a claim . T h at is n o t th e case h ere.

In Hall’ s b rief to th e Calif o rn ia Co u rt o f A

p p eal, h e arg u ed th at u s e

o f CA L J IC 2 .1 5 v io l ated d u e pro cess. A l th ou g h th e d issen t co n ten d s th at th e Calif orn ia C o u rt o f A

p p eal ad d ressed o n l y w

h y th e u se o f C AL J IC 2 .1 5 w as an erro r o f s tate l aw , th e Co u rt o f A p p eal’ s o p in io n also in clu ded
g ro u n d s f o r rej ectin g Hall’ s c o n stitu tio n al arg u m en t. T h e Calif o rn i a Co u rt

o f A p p eal relie d o n P r i eto , w h ich in tu rn relies o n Ba rker

, a case th at d iscu sses w

h en a p erm issiv e in f

eren ce i n s t ru ctio n co m

p o rts w ith du e p r o cess. Peo

ple v. Ba rker

, 9 1 Cal. A

p p. 4 th 11 6 6
, 1 17 4 (2 0 0 1 )

. T h e se

cases p ro v id e en o u g h i n sig h t i n to th e state co u rt’ s reaso n in g f o r rej ectin g Hall’ s co n stitu

tio n al claim

.H A L L V

. H A W S 27

B

. B r echt

Harmless Error Review

B u t the inquiry does n ot end the conclusion that the state court’s d eci s i o n w a s unreasonable in finding no constitutional violation. Habeas relief on a trial er r o r claim is appropriate only if the e rror r esults in “ actual prejudice.” Davis v. Ayala

, 135 S. Ct. 2187, 2197 (2015) (quoting Brecht v. Abrahamson

, 507 U .S. 619, 637 (1993)). U nder the Brec h t t e s t for actual prejudice, “relief is proper only if the federal court has ‘g rave doubt a bout whet h e r a t r ial error of federal law h ad substantial and injurious effect or influence in d etermining the j u r y ’s verdict.’” Mays v. Clark

, 807 F .3d 968, 980 (9th Cir. 2015) (quoting Ayala

, 135 S. Ct. at 2197–98).

The Brecht standard is so string ent that it “subsumes” the AEDPA/ Chapman standard for review of a sta t e court determination of the harmlessness of a constitutional violation. Deck v. Jenkins

, 814 at 954, 985 (quotin g F r y v

. Pliler

, 551 U.S. 112, 120 (2007)). W e need not apply both a Brecht review and an AEDPA/ Chapman review because “[ a] determination that the e rror r esulte d in ‘actual prejudice’ [ u n d e r Brecht ] necessarily means that the state court’s harmless error determination was n o t merely incorrect, but objectively unreasonable.” Id

.

Reg ard less, ev en if w e ap p lied t h e g ap

- f illin g ap p ro ach f

ro m Ha rrin g to n , w e w o u ld still h o ld th at th e resu lt reach ed b y th e C alif o rn ia Co u rt o f A

p p eal w as u n reaso n ab le. T h e h y p o th etical “ ar gu m en ts or th eo ries” th at co u ld h av e su p po rted th e d en ial o f relief are, as th e d issen t

su g g ests, th at th e p erm issiv e in f eren ce in CA L J IC 2 .1 5 is n o t “ irratio n al”

so it ca n n o t a m ou n t to a v io latio n o f d u e p ro cess, o r th at th e in stru ctio n

w as h arm less ev en u n der C h a p ma n

. W e h av e ad d ressed th o se arg u m en ts in th e b o dy o f o u r o p in io n

.H A L L V

. H A W S

28

Even if w e w ere to separately a naly z e the state court’s harmless err o r d e t e r

m ination under AEDPA/ Chapman before
eng ag ing in a separate Brecht analy sis, we would find that the California Court of App e a l ’ s harmless error determination

was objectively unreasonabl e

. As discussed above, instructing the jury on CAL J I C 2

. 1 5 violated H all’s d ue process rig hts, and therefore harmless error should have been analy z ed under the Chapm a n s tandard for constitutional violations. See Chapman v

. California

, 386 U.S. 1 8
, 23–24 (1967) (holding that a “ harmless bey ond a reasonable doubt” standard applies to constitutional trial ty pe errors). I t was an unreasonable application o f c l e a r ly established federal law for the California Court of Appeal to evaluate Hall’s claim under the less string ent W

atson standard.

Our Brecht a

naly sis also r e v ea l s that the state court’s harmless error determination was unr ea s o nable because the instructional error resulted in actual prejudice. L ike the two
mag istrate judg es, the two district court judg es, and another panel majority of our court that have reviewed this trial error under Brecht

, we have “g r ave doubts” a bout whether the jury

, without having heard the erroneous CAL J I C 2.15 instruction, would h ave f

ound Hall g uilty b ey ond a reasonable doubt. The State’s c ase ag ainst Hall relied o v erwhelming ly on the
te s timony of L ena Hix on, whose story chang ed numerous times before trial and w h ose statements under oath were contradicted by the objective e v i dence at trial a nd by the other witnesses.

F irst, it is nearly impossible to b elieve Hix o n’s testimony of the timeline of events g iven the judicially noticed distance between the d ifferent loca tions where each event alleg edly took place. Second, Hix o n l i ed about u sing and possessing F oth’s property

. She testified that she never saw, touched, o rH A L L V

. H A W S 29

took any o f F oth’s property or used F oth’s cell phone. B ut phone r ecords showed that day s after the murder, Hix on used F oth’s p hone to call a cu s t o mer and her fing erprints were found on some o f F o th’s belong ing s. I n addition, m o nths after the crime, a woman by t h e n ame of Mikiisha Perine found incriminating items among those she was storing on behalf of Hix on’s boy friend, Michael W ashing ton. Perine found a b lue pur se c ontaining Hix on’s social security c ard, Ko’s Visa and Costco c ards, Fo t h ’ s ATM card, and three o f F oth’s business cards. T hird, H ix on do w nplay ed her o wn involvement in the crimes. I nitially

, Hix on denied ever stabbing F oth. Then, s h e t old police that she d id stab F oth
once, but that Sherrors forced h er to stab F oth. T h en, she told fellow inmate Katherine Davis that she used h er shirt over the knife to avoid leaving f

ing erprints and that she was surprised
at how the knife felt as it went into the body

. I n addition, Hix on testified that she broke a fin ge r nail w hen Sherrors
g rabbed her at the crime scene, but later she told D a v i s s he broke it while she was holding F oth down or h elping drag his body

. L a stly

, Hix on lied or chang ed her s t ory reg arding several other d etails o f the nig ht of the murder. Most n otably

, Hix on first identified two other men a s the killers, but later pointed her fing er at Sherrors and Hall. She also told police that F o th approached her for cocaine, but she told D avis that F oth approac h e d h e r f

or sex

. She a lso testified that a shirt found a t the c rime scene belong ed to Sherrors, but forensic testing eliminated Sherrors, H all, and Hix on as h abitual wearers of the shirt.

Given these non-trivial inconsistencies, t he jury could have disbelieved Hix on entirely . After all, she had a motive
to lie; she w as offered a plea ag reement i n ex chang e f o r her testimony ag ainst Sherrors and Hall. Aside from Hix on, the only other evidence ag a inst Hall was his possession of F oth’sH A L L V

. H A W S

30

ring and his presence as a passeng er in the Audi. No phy sical evidence linked Hall to the murder.

CAL J I C 2.15 invited and encourag ed the jury to infer that Hall w as g uilty of murder from his possession of F o th’s ring plus “slig h t” corroborating evidence. The instruction defined

“ s l ig ht” corroborating evidence as the “attributes o f possession (time, place and manner), opportunity to commit the crime, an d d e f

endant’s conduct.” This allowed the jury
to infer t h a t H a l l committed the murder based on the “ time, place, and manner” of his possession; in other words, the jury
may have b een encourag ed to inf e r t h a t Hall committed the murder based on the mere fact that he was in p o s s e s s ion o f the ring and a passeng er in the Audi in the d a y s af t er the murder. As already d i s cussed, such an inference is illog ical and improper. B ecause Hix on’s testimony was unbelievable and because of the lack of other evidence linking H all to the murder, we have g

rave doubts about whether the jury would have found Hall g uilty bey o nd a r easonable doubt without the unconstitutional permissive instruction. 1 1

11 T h is co u rt prev io u sly d rew th i s co n clu sio n in th e case of Hall’ s co

d ef en d an t , S h erro rs. S

ee S h erro r s v. W o o d fo rd

, 4 2 5 F. A

p p ’ x 61 7 (9 th Cir. 2 0 1 1). T h ou g h S

h erro r s i s an u n p u b lish ed m em o ran d u m d isp o sitio n th at is n o t b in d in g o n u s, it is q u ite p ersu asiv e b ecau se th e an aly s is aro s e f ro m t h e v ery sam e trial. In f

act, t h e State co n ced es th at it assu m ed th at

o u r d ecisio n in S

h erro r s w o u ld b e b in d i n g an d th at “ if i t w ere n o t f or Jo h n so n v. W

illia ms , th e State m a y n o t h av e tak en t h is ap p eal.” W e d isag ree th at Jo hn so n ch an g es th e resu l t in th is case.

In Jo h n so n , t

h e Su p rem e C o u rt h eld th at w

h en a state co u rt ad d resses

so m e, b u t n o t a ll, o f a d ef en dan t’ s claim s , th e f

ed eral co u rt o n h ab eas

rev iew m u st p resu m e, su

b j ect to reb u ttal, th at th e u n ad d ressed claim s w ere ad j u d icated o n th e m erits, th ereb y w arran tin g A EDP A d ef eren ce. 1 3 3 S. Ct 1 0 8 8, 1 09 1 (2 0 1 3 ). Ou r d ecisio n in S h erro rs w as co n s isten t w ith th is. I n S h erro rs , w e ap p lied A EDP A d ef eren ce an d co n clu d ed th at th eH A L L V

. H A W S 31

CONCLUSION

W e conclude that Hall’s Ru le 60(b) motion was not inconsistent with AEDPA’s bar on second or successive petitions, AEDPA’s statute of limi t a tions, or AEDPA’s

e x haustion requirement. The district court did not e r r i n reviewing Hall’s Ru le 60(b) motion a nd it did n ot abuse its discre t i o n in reopening Hall’s case under Rule 60(b)(6). F urther, we concl u d e that habeas relief is warranted. Therefore, we AF F I RM the d istrict court’s order g ranting Hall’s motion to reopen under Rule 60(b) and we A F F I RM the district court’s orde r that conditionally g ranted the F irst Amended Petition for W rit of Habeas Corpus unless the State
g rants Petitioner a new tria l w i t h i n 90 day s from the date o f this opinion.

AF F IRMED

.

Calif o rn ia C o u rt o f Ap p e a l u n reaso n ab ly ap p l ied estab lish ed S u p rem e Co u rt p reced en t w

h en it “ f ailed t o reco g n ized th at th e in stru ctio n al erro r

w as o f co n s t i t u t io n al m ag n itu d e.” S h erro rs , 42 5 F. A

p p ’ x at 6 1 9

. T h e State m isin terp rets th e in ten t o f th is s en ten ce. We w ere n o t say in g th at th e Calif o rn ia Co u rt o f A

p p eal f ailed to ad d ress th e i n stru ctio n al erro r claim

. W e w ere say in g th a t i t s fa ilu re to f in d a co n stitu

tio n al v io latio n w as

u n reaso n ab le. A n d w e say th e sam e h ere.H A L L V

. H A W S

32

CAL L A HAN, Circuit J udg e, dissenting :

I ag ree with the m a

jority that this case is “rare a nd

ex traordinary for the r easons it cites. W hat is ex traordinary is that this c ourt repeats the e rror of Sherrors v. W oodford

, 425 F

. App’x 6 17 (9th Cir. 2011), which g ranted the habeas petition of Hall’s co-defendant Ronnie Sherrors based on the

same supposed instructio n a l error, even in the face o f additiona l f

a cts demonstrating that S herrors was wrong ly decided. Sherrors was retried without the suspect instruction and, unsurprisi n g ly

, was ag ain convicted of first deg r ee murder and sentenced to life imprisonment wi t hout the possibility of parole. People v. Sherrors

, 2014 W L 6907990,
at *1 ( Cal. Ct. A p p. Dec. 9, 2 014). I n g ranting Hall’s petition, the c ourt n ot only ig nores this reality

, but invents an

error of constitutional mag nitude where no n e e x ists. T o be
sure, the instructional error Hall claims is an error o f state law only

. I n finding a due process violation war r a n t i n g h abeas relief, the majority brushes aside the A E D P A standards a nd the Supreme Court’s repeated instructions that we must defer
to reasonable state court decisions. See, e.g.
, Davis v. Ayala

, 135 S. Ct. 2187, 2199, reh’g d enied

, 1 3 6 S

. Ct. 14 (2015). The weig hty evidence a gainst Hall only underscores the

ex tent to which the majority contrives to reach its result.

Nor is H all deserving of relief under Rule 6 0 ( b). H all knowing ly caused h is own petiti o n t o be dismissed, and, o f his own accord, failed to take any action on that dismissed federal habe a s p e tition for three years

. I ndeed, he waited until after Sherrors p rocure d habeas relief before seeking leave to reopen his own case. The state ex plained a t oral
arg ument that, because Hall had clearly abandoned h i s o wn efforts to p ursue habeas r e l i e f

, he was n ot retried with Sherrors. Reopening his case impermissibly rewards hisH A L L V

. H A W S 33

inaction and g amesmanship, and unfairly imposes the cost o f his retrial on the state.

I therefore respectfully dissent.

I

Hall and Sherrors stole a car that Steve F oth was driving

. They forced F oth into the trunk of the car and drove out to a dark street. T here, a ccompanied by L ena Hix on, t h ey pulled F oth out of the trunk and beg an stabbing him. F oth sustained
approx imately eig hty -three stab wounds and bled to death. Hall and Sherrors stripped F o th’s body naked, discarded it in some bushes, and drove away

.

Hall and Sherrors were tried and convicted in state court of first deg ree murder while u sing a deadly weapon, and with the special circumstance of murder du r ing the course of a robbery

. At trial, the jury w as instruc t e d with CAL J I C No. 2.15, which states:

I f y ou find that a d efendant was in possession of recently stolen property , the fact of t h at possession is not by itsel f sufficient to prove

an inference that the d efendant is g uilty of the crime o f murder. B efore g uilt may be inferred, there must be corroborating evidence tending
to p r o ve a defendant’s g uilt. However, this corroborating evidence need only be slig ht and need not by itself be sufficient to warrant an inference of g

u ilt.H A L L V

. H A W S

34

As corroboration, y ou may c onsider the attributes of possession—time, place a nd
manner; that the defendant had an opportunity
to c ommit the crime charg ed; the defendant’s conduct; his false or contradictory statements, if any ; and any other statements that may have been made with reference to the property

.

Each defendant received a sentence of life without the possibility

of parole, plus one year.

Hall appealed the judg ment to the California C o u r t o f A p p eal, which affirmed the judg ment in a n unpublished decision. The Court of Appeal assessed whether it was error
to h ave instructed the jury pursuant to CAL J I C N o

. 2.15, but assessed this error u nder the harmless error test of People v

. W atson , 46 Cal. 2d 818 (1956), Calif ornia’s state-law harmless error standard, rather than t h e constitutional harmless error test of Chapman v. Cali f o r nia
, 3 8 6 U.S. 18 (1967). The Court of Appeal concluded that it was an error o f
state law, but that e r

ror w as harmle s s

. The opinion did not touch o n Hall’s f

ederal due proc e s s c l aim. H all then filed a petition for r eview in the California Supreme Court, arg uing that the Court of Appeal erred by apply ing W atson rather than Chapman

. The California Supreme Court summarily denied the petition.

I n 2 005, H a l l f

i l ed a Petition for W rit of Habeas Corpus in the district court pursuant to 28 U.S.C. § 2 254, challeng ing his conviction. He then filed a F irst Amended Petition which raised not only his claim r elated to CAL J I C No. 2.15, but also

an additional claim related to a different jury instruction, CA L J I C No. 8.81.17. When the state moved to dismiss the
p etition on the g round that the claim related to CAL J I C N o

.H A L L V

. H A W S 35

8.81.17 w as u nex haus ted, Hall requested that the district
court stay h i s c a s e so that he c ould present his unex hausted claim to the state courts. T his request was denied. The district

co u r t advised Hall that he could e ither “voluntarily dismiss his entire federal petition and return to state court to ex haust his unex hausted claims,” or “ f ormally abandon his

unex h a usted claim and proc e e d with his ex hausted claims.” Hall was e x p licitly informed b y the d istrict court that if he chose to proc e e d wi t h his ex hausted claims, “he must file a pleading entitled ‘F ormal Abandonment o f Unex hausted Claim’ with this Court no later than 3 0 day s after the District J udg e issues his decis ion.” The district court informed H all that he was “presented with the options stated above to avoid d i smissal of his petition.” Hall r equested an ex tension o f time to f ile a f ormal a bandonment of his unex hausted c laim, which was g ranted. B ut Hall n e v e r submitted a notice o f formal abandonment or any other filing in response to the district c ourt’s order. Hall’s mix ed petition was therefore dismissed without prejudice and the case was terminated.

Hall’s c o-defendant Sherrors also f iled a Petition for W rit of Habeas Corpus in 2005, challeng ing his own conviction. I n May 2007, w ell after th e d i smissal of Hall’s petition, the district c ourt conditi onally g r anted the writ, and the state appealed that decision. I t was n o t u n t i l almost two y ears later—and o ver three y ears after the district court’s d ismissal of Hall’s p etition—that Hall filed a “Motion to J o in Case o f Co-Defendant” in the district court. The district court treated this f iling a s a motion to reopen Hall’s orig inal h abeas petition. The district court deemed “consideratio n o f the matter” p r emature w h i le the decision g ranting Sherrors’s petition was o n appeal, and de n i e d the motion “without prejudice to refile the motion once t he Court of Appeals for the Ninth Circuit issues a final decision in Sherrors’s h abeasH A L L V

. H A W S

36

case.” W hen the Ninth Circuit affirme d the district court’s decision to g rant Sherrors’s petition in 2011, Sherrors

, 4 25 F

. App’x 617; see also id. at *3 ( Callahan, J
., dissenting ), H all filed a “Motion to J o in Case of Co-Defendant; Motion to ReO p en Case of Hall v. B

. Cash” in the district court, seek i n g relief u n der Rule 6 0. The state opposed the motion, contending that Hall should be required to file a new petition. Hall, a t that point proceeding p ro se, f iled a reply indicating that he would f

ile a n ew petition. T h e court appointed counsel
to represent Hall, a

nd directed that Hall file a supplem ental Motion to Re-Open Under Rule 60(b). Hall, throug h counsel, then filed a supplemental motion seeking relie f u n d er Rule 60(b)(6). The dis t r i c t court a f forded H all relief under Rule 60(b)(6), and found that h abeas r e l i ef was warranted. The state appealed.

I I

Rule 60(b)(6) e ntitles the moving party to reli e f from judg ment for “any other reason that jus t i f i e s relief” and a motion invoking this rule must be filed “within a reasonable time

. . . after the entry o f the j u d gm e n t

. ” F ed. R. Civ. P. 60(b)(6), (c)(1). Our prece d e nt is clear that “[ w] e use Rule 60(b)(6) ‘ sparingly as a n equitable remedy to prevent manifest injustice.’” L a l v

. C alifornia

, 610 F .3d 5 18, 524 (9th Cir. 2010) (emphasis added) ( q uoting U nited States v

. Alpine Land & Reservoir Co.
, 9 84 F .2d 1047, 1049 (9th Cir. 1993)). Th e S u preme Court has held, and w e have recently reiterated, that “[ t] o justify relief under Rule 60(b)(6), a party must show ex ternal ‘ex traordinary circumstances’ sug g esting that the party is faultless in the delay .” W ashington v. Ryan

, 833 F .3d 1 0 87, 1099 (9th Cir. 2 0 1 6 ) (en banc) (quotingH A L L V

. H A W S 37

Pioneer Inv. Servs. C o

. v. B runswick Assocs. Ltd. P’ship

, 507 U.S. 380
, 393 ( 1993)); see also Gonzales v. Crosby

, 545 U.S. 524, 535 (2005).

Hal l d o e s n ot come close to showing a “g ood reason for failing to take the action sooner,” United States v. Holtzman

, 762 F .2d 720, 725 (9th Cir. 1985), or that he is “ faultless in the delay ,” W

ashington

, 8 3 3 F .3d at 1099. Q u ite to the contrary , the record indicates that the fault lies with him alone. The majority ’s characteriz ation of this c ase a s involving a “ perfect storm” which “produced a s i t u at i o n in which Hall would have been subject to ‘manifest injustice’ if
not for Rule 6 0(b ) (6),” O p. at 19, is b ey ond g enerous; it is inventive. I t was not outside forces, but Hall’s own conduct (or lack thereof), that “ produced” this situation. Hal l failed
to notify the district court i n 2 0 0 6 o f how he wished to proceed despite receiving notice that his petiti o n w o u ld be dismissed if he did not affirmatively select one of the two options presented to him. Sherrors all e ge d ly continued to advise Hall that he was filing “writs and motions” with Hall’s

name included as a “co-submission.” Hall also asserts that he had a “ g ood faith reason to believe his interests were included in any outcome of [ Sherrors’s case] .” B ut n o t h i ng in the record indicates that Hall h e ld this belief at the time he failed
to file a formal abandonment or otherwise take action on his

own petition. And althoug h both t h e district court and the majority accept Hall’s asse r tion that Sherrors’s h abeas petition was orig inally submitted to the district court on behalf of b o th Hall and Sherrors, reference to S h errors’s habeas petition reveals no such c o-submission. See Case No. 3:05-cv-01262-I E G-L SP, District Court Docket N o. 1. W hat is more, Hall waited over three years to t a k e action to join Sherrors’s case.H A L L V

. H A W S

38

Granting Rule 60(b)(6) r elief under these circumstances
not only c ontradicts our Rule 60 j u r i s p r udence but blithely accepts Hall’s ex cuses for his inaction. I n deed, the conclusion that these facts “are the reason f or H a l l ’s failure to comply

w i th the district court’s J a nuary 25, 2006 order” fin d s n o support in t h e r ecord. Op. a t 19. H all a lone b ears the responsibility for the dismissal of his case and his three-y e ar delay i n seeking to reopen it. These facts compel me to conclude that the district c ourt abused its discretion in finding “ex traordinary circumstances” warranting relief under Rule 60(b)(6).

I I I

The majority compou n d s its mistake by finding an error of constitutional mag nitude where none ex ists. “ The Due Process Clause of the F ourteenth A m e ndment ‘protects the accused a g ainst conviction ex cept upon proof b e y o n d a reasonable doubt o f every fact necessar y to constitute the crime with which he is charg ed.’” Francis v. F r a n k lin

, 471 U.S. 307, 313 (1985) (quoting In re W i n s h i p , 397 U.S. 358, 364 (1970)). This principle “prohibits the [ s] tate from using evidentiary presumptions in a jury charg e that h ave the effect o f relieving the [ s] t a te o f its burden of persuasion bey ond a reasonable doubt of every essential e l em e n t o f a crim e

. ” Id. (citations omitted). “A permissive inference instruction a llows

, b u t d oes n ot require, a jury to infer a specified conclusion if the go v ernment proves c ertain predicate facts. A lthoug h such an instruction does not sh i f t the burden of proof, it v iolates due process ‘if the sug g ested conclusion is not one that r e ason a nd common sense justify in lig ht of the proven facts b efore the jury .’” United States v

. W arren , 25 F .3d 890, 897 ( 9 th Cir. 1994) (quoting F rancis
, 471 U.S. at 314–15). An instructional error rises to the levelH A L L V

. H A W S 39

of a c onstitutional violation if “the ailing instruction by itself

s o infected the entire trial that the resulting convicti o n violates due process.” Estelle v

. M c G uire
, 502 U.S. 62, 72 (1991) (citations omitted).

Here, the California Court of Appeal addressed the merits of Hall’s instru c t i o n a l

- error claim o nly as an error of state law, a n d found that any error was harmless under W atson , 46 Cal. 2d 818. T he California C o u r t of A ppeal did not

ex p ressly a ddress Hall’s c laim t h a t t his instructional error violated his due process rig hts. Hall then petit i oned to the California Supreme Court, claiming that the Court of Appeal

e rred in a

pply ing W

atson , 46 Cal. 2 d 818, rather than Chapman

, 3 8 6 U .S. a t 2 4. T h e California Supreme Court summarily

denied Hall’s petition.

“W hen a state c ourt rejects a federal claim with o u t

ex p ressly a ddressing that claim, a federal habeas co u r t must presume that the federal c laim was adjudicated on the merits

. . . .’” Johnson v. W

illiams

, 568 U.S. 289, 133 S. Ct. 1088, 1096 (2013). H ere, we may assume that Hall’s d u e process claim was adjudicated on the merits, alth o u gh neither the California Court of Appeal nor the California Supreme Court

ex p ressly a ddressed it. The Supreme Court has directed that Harrington v. Richter

, 562 U.S. 86 ( 2 0 1 1), g overns our analy sis in this circumstance. W illiams

, 133 S. Ct. at 1096. Thus, “ [ u ] n der § 2254(d),” we “ must determine what
arg uments or theories . . . could have supported . . . the state court’s decision; and then

. . . must a sk whether it is possible fairminded jurists could d isag ree that those arg u m e n ts o rH A L L V

. H A W S

40

theories are inconsistent with the h olding in a prior decision of this Court.” 1 Harrington
, 5 6 2 U.S. at 1 02 (emphasis added).

Hall does not come close to satisfy ing this standard. The Court o f Appeal could hav e d etermined that the permissive inference instruction g iven at Hall’s trial did not so infect the entire trial that his conviction v iolates due process, a nd fairminded jurists could d isag ree about the correctness of this determinatio n

. I n reaching the opposite conclusion, the

m a j o r i t y “ c o l l a p s [ e s ] t h e d i s t i n c t i o n b e t w e e n ‘ a n

u n reasonable application of federal law’ and what [t h e majority ] b elieves to be ‘an incorrect or erron eo u s application of federal law.’” Nevada v. Jackson

, 1 33 S. Ct.

1 T h e m aj o rity

co n ten d s th at H

a rrin g to n d oes n o t ap p ly

b ecau se th e Co u rt o f A

p p eal’ s an aly s is u

n d er th e W

a tso n stan d ard in d icates th at i t d eterm in ed th at th ere w as n o c o n s t itu tio n al erro r. T h e m aj o rity f u rth er

co n ten d s t

h at th e co u rt’ s citatio n to Peo ple v. Ba rk

e r , 9 1 Cal. A

p p

. 4 th 1 1 6 6 (2 0 0 1 ), p ro v id es su f f icien t “ i n sig h t in to th e state co u rt’ s reaso n in g f o r rej ectin g Hall’ s co n stitu t io n al claim .” Op

. at 2 6 n .1 0

. B u t th e citatio n to Ba rker tells u s n o th i n g ab o u t th e Co u rt o f A pp eal’ s reaso n s f

o r d en y in g th e f ed eral claim

, s in ce Ba rker f in d s th a t g iv in g C A L J IC No

. 2 .1 5 im p licates a d ef

en d an t’ s fed eral d u e p ro cess rig h ts, 9 1 Cal. A p p

. 4 th at 1 1 7 4

– 7 6 (assessin g erro r u n d er Ch a pma n stan d ard ), w

h ile Prieto im p licitly rej ects th at co n clu sio n , 3 0 C al. 4 th at 2 4 9

. Ac c o r d in g ly

, w e

can n o t treat th is citatio n as a “ reaso n e d ” d ecisio n o n Hall’ s d u e p ro cess claim

. Cf. Cu r iel v. Miller , 8 3 0 F.3 d 8 6 4 , 8 7 0 (9 th Cir. 2 0 1 6 ).

Mo reo v er, th e m aj o rity ’ s an aly s i s co n trad icts th e clear h o l d i ng of W illia ms , 1 33 S. Ct. at 1 09 6. In W ill i a m s , th e Su

p rem e Co u rt in stru cted th at w h ere, as h ere, a state co u rt co n sid ers a p etitio n er’ s f ed eral claim b u t d o es n ot “ ex p ressly ack

n o w led g e” it, th e rev iew in g f ed eral co u rt m

u st

assess th e state co u rt’ s d ecisio n u n d er H a rrin g to n

. W

illia ms , 1 3 3 S. Ct. at 1 0 9 3
, 10 9 6

. T h is is tru e ev en if th e state co u rt cites to th e co n tro llin g f ed eral stan d ard

, o r cites ca s e s w h i ch ref eren ce f ed eral law

. Id

. at 1 0 9 3
, 1 0 9 8

– 9 9

.H A L L V

. H A W S 41

1 990, 1994 (2013) (emphasis in orig inal) (quoting W illiam s v. Taylor , 529 U.S. 362, 412 (2000)).

People v. Prieto
, 3 0 Cal. 4 th 226 (2003), does not support the conclusion that g iving CAL J I C No. 2.15 violated H a ll’s due process rig hts. I nstead, Prieto found that “application o f CAL J I C No. 2.15 to nontheft offenses like rape and murder” is improper under California state law. Id. at 248. The Prieto

co u rt ex plained that the instruction was an error under state law because “‘proof a defendant was in conscious possession of r ecently stolen property simply does not lead naturally and logi c ally to the conclusion the defendant committed’ a rape

or murder.” Id. at 249 (emphasis added) (quoting P e ople v

. Barker

, 9 1 Cal. App. 4th 1166, 1176 (2001)). 2 B y contrast, a permissive inference instruction “is constitutional so long a s the inference would not be irr a t i onal .” Y ates v. Evatt
, 500 U.S. 391, 4 0 2 n.7 (1991) (emphas i s a dded) (citing

2 Prieto ’ s citatio n to Ba rker i s rev ealin g , b u t n o t f o r th e reaso n s g iv en b y th e m aj o rity

. S

ee Op

. at 25

. In deed

, t

h e Prieto co u rt ap p ears to h av e

co n sid ered

, an d rej ected

, Ba rker ’ s co n clu sio n th at in stru ct i n g th e j u ry w i th C ALJ IC No

. 2.1 5 o n a m u rd er ch arg e im

p licates a d ef

en d an t’ s d u e p ro cess rig h ts. 3 0 Cal. 4 th at 24 8 –4 9

. Prieto also rej ected t h e arg u m en t th at C ALJ I C N o

. 2 .1 5 v io lated du e p ro cess by creatin g a m an d ato ry in f eren ce, as it f

o u n d t h at “ n oth in g in t

h e in stru ctio n ab so l v e d th e p ro secu tio n o f its b u rd en of estab lish in g g u ilt b ey o n d a reaso n ab l e d o u b t.” 3 0 Cal. 4 th at 2 4 8 ; see g en era lly S a nd stro m v. M

o n ta n a , 4 4 2 U

. S

. 5 1 0
, 5 2 1

– 2 4 (1 97 9 ). T h e co u rt lo o k ed to th e j u ry i n stru ctio n req u irin g th at th e p ro secu tio n p ro v e th e elem en ts of th e o f f en se bey o n d a reaso n ab le d o u b t,

an d stated th at th e trial co u rt g av e “ o t h er in stru ctio n s p r o p erly in stru ct[in g ] th e j u ry on i ts d u ty to w eig h th e ev id en ce, w h at ev id en c e i t

m ay co n sid er, h o w to w eig h th at ev id en ce, an d th e b u rd en o f pro o f ” su ch th at “ th ere is ‘n o p o ssib ility ’ th at [th e in stru ctio n ] red u ced th e p ro secu tio n ’ s b u rd en o f pro of in th i s c ase.” 30 Cal. 4 th at 2 48

. T h is d iscu ssi o n fu rth er ev i d en ces th at th e Prieto co u rt co n sid ered

, an d rej ected

, t

h e p ro p o siti o n t h a t g iv in g CA L J IC No

. 2 .1 5 is an erro r of

co n stitu tio n al sig n if

i can ce.H A L L V

. H A W S

42

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

T h e California Supreme Court reached this sa m e

c o n clusion w hen it c onsidered whether CAL J I C No. 2.1 5 created an improper permissive inference in violat ion of a defendant’s d

ue process rig h ts. People v. Moore
, 51 Cal. 4th 1104, 1132 ( 2 0 1 1). T h e Moore court ex plained: “ Althoug h

we concluded in Prieto that t h e connection between a defendant’s g uilt of nontheft offenses and h i s o r her possession o f p roperty stolen in the crime is not suffi c i e n t l y strong to warrant application of the slig ht corroboration rule, this does not mean t h at drawing a c onnection b etween possession a

nd g u ilt is irrational

. ” Id. (emphasis added). The
court stated that it “[ could not s a y ]
, t h erefore, that it would have been irrational f

or the jury

. . . to d

raw an inference o f defendant’s g uilt of the

. . . murders f rom his possessing their property soon after the murders w hen th e r e was other slig ht corroboration of g uilt, especially when it is likely the same person or persons who killed the victims also to o k their belong ing s.” Id. (emphasis i n orig inal) (citation omitted). This reasoning

, althoug h n ot b i n d ing on this court, is log ically sound, and supports a finding that the state court could have reasonably determined that g iving the jury CAL J I C N o

. 2

. 15 was n ot a constitutional error, and that fairminded jurists could disag ree with the correctness of this result.

The majority concludes the o pposite, and finds t hat the jury instruction violated Hall’s due proce ss rig hts. Op. at 24–26. The majority finds not only that the state court erred in concluding that this error wa s o ne of state law only

, butH A L L V

. H A W S 43

that this decision was objectively unreasonable. Op. at 26. I n doing so, the majority r epeats the error that we ar e s o often criticiz ed for, and “treat[ s] the unreasonableness question as

a test of its confidence in the result it would reach under de novo review . . . .” H

arrington , 562 U.S. at 102.

The majority ’s conclusion further ig nores tha t w e “determine the constitutionality o f a permissive i n fe r e nce instruction o n a case-by -case basis,” in the contex t of the trial at issue. United States v. W arren , 25 F .3d 890, 898 (9th Cir. 1994) (citing Ulster County v. Allen

, 442 U.S. 1 4 0
, 1 6 2–67 (1979)). Reviewing the record evidence makes clear that it is rational to infer, from the evid e n c e t h at Hall h ad F oth’s property in the day s following F oth’s murder a n d the other corrobo r a ting evidence p resented at trial, including Hix o n’s detailed testi m o n y , that Hall k illed F oth. This inference is “one that reason a

n d common sense ju s t ify in lig ht of the
proven facts before the jury ,” and thus there was no constitutional violation. F rancis , 471 U.S. at 315.

According ly

, the state court did not err, let alo ne unreasonably a p p ly c learly established federal law, in rejecting Hall’s claim that i n s t r ucting the jury with CAL J I C No. 2.15 was a cons t i t u tional error. To the contrary , g iving the jury this instruction was an error of state law only

.

I V

Even assuming that instructing the jury with CAL J I C No. 2.15 was not simply an error of state law, but was an error o f constitutional ma gn i t u d e, Hall is still not entitled to relief because any

error was harmless.H A L L V

. H A W S

44

Establishing that g iving the jury CAL J I C No. 2.15 violated his d

ue process rig h ts requires Hall to show b oth that
t h e instruction’s “sug g ested conclusion [ was] not one t h at

reason a nd common sense justif[ ied] in lig ht of the pr o v en facts,” W arren , 25 F .3d at 8 97, and that g iving the instruction

was not ha r m less bey ond a reasonable doubt, see, e.g. , Chapman

, 386 U.S. at 24. J ust a s the state court’s denial o f Hall’s federal c laim could have been supported by the theory that g iving C A L J I C N o. 2.15 was not a constitutional error, it a lso coul d h a v e b een supported by the theory that any constitutional error was harmless bey ond a reasonable doubt. 3 And, as the Supreme Court made c lear in Ayala

, when a state court d etermines that an error was harmless b ey on d a reasonable doubt, that determination is entitled to AEDPA deference. 135 S. C t

. at 2 199. W e must therefore ask “whether it is possible fairminded jurists could d isag r ee” with the cor r e ctness of the state court’s denial of Hall’s federal claim on the theory that any error w a s h armless bey ond a reasonable doubt. Harrington , 562 U.S. at 102.

Of cour s e , b e cause this is a collateral proceeding

, we must a p p l y n ot only the A EDPA/ Chapman standard o f

rev i e w , but also the standard set forth by Brecht v

. Abrahamson

, 507 U.S. 619 ( 1993), which r e q uires a petitioner t o establish “actual prejudice.” Id. at 6 37. W h en assessing a state court’s harmlessness determination under

3 A g ain

, alth o u g h th e Cal i f o rn ia Co u rt o f A

p peal assessed h arm lessn ess, it d id so u n der th e W a tso n stan d ard

, an d ad d ressed o n ly

w h eth er th e erro r w as o n e o f state law

. T h e Califo r ni a Su p rem e Co u rt issu ed a s um m a r y d en ial o f Hall’ s f ed eral claim

. A s ex p lain ed ab o v e,

w h en a state co u rt’ s d eterm in atio n o f a f ed eral claim is u n acco m

p an ied b y

a reaso n ed d ecisio n , w e “ m u st d eterm in e w

h at arg u m en ts o r th eo ries . . .

co u ld h a ve su

p p o rted

. . . th e s tate co u rt’ s d ecisio n

. . . .” Ha rrin g to n , 5 6 2 U.S. at 1 0 2 (em

p h asis ad d ed ); W

i llia ms , 1 3 3 S. Ct. at 1 0 9 6

.H A L L V

. H A W S 45

this test, “relief is p roper only if the federal court has ‘g rave doubt a bout whether a trial erro r o f f e deral law h ad substan tial and injurious effect or influence in d etermining the jury ’s verdict.’” Ayala

, 135 S. Ct. at 2197–98 (quoting O’Neal v. McAninch

, 513 U.S. 432, 436 ( 1995)). “There must b e more than a ‘reasonable possibility ’ that the err o r w a s harmful.” Id. at 2198 ( quoting Brecht

, 507 U.S. at 637). This standard “ reflects the view that a ‘ State is not to be put to th[ e] arduous task [ of retry ing a d efendant] b ase d on mere speculation that the defendant was prejudiced by trial e rror; the court must find that the defendant was actually p rejudiced by t h e e r r o r.’” Id. (quoting Calderon v. Coleman

, 525 U.S. 1 4 1
, 146 (1998)). I mportantly

, as the Supreme Co u r t cautioned u s i n A

y ala

, the Brecht standard does not “somehow a

brog ate[ ] the limitation on federal habeas r e l i e f that § 2254(d) plainly sets out.” I d

. W hile we “need not ‘formally ’ a

pply both Brecht and AE DPA/ Chapman ,’ AEDPA . . . ‘sets forth a precondition to the g rant of habeas relief.’” Id. (quoting Fry v. Pliler

, 551 U .S. 112, 119–20 (2007)). Thus, it is n ot enoug h to find actual prejudice under the Brecht standard; the Chapman / AEDPA standard must also be met, and we must therefore accept a state court’s prior harmless e rror d etermination u nless it involved such an “unreasonable” application of Supreme Court precedent that “no f airmind e d jurist” could ag ree w ith it. Ayala

, 135 S. Ct. at 2199.

The majority applies the wrong standard, and in doing so, fails to afford the state court the deference it is due. T he majority ’s error here is threefold. I t first ig nores Harrington and W illiams

, and f

ai l s t o ask what a

rg uments could have supported the state court’s decision. I t then repeats the error of Deck v. Jenkins

, 814 F .3d 954 (9th C i r

. 2016), and states that it need not review the state court’s decision forH A L L V

. H A W S

46

reasonableness under Chapman because “[ a] determination that the err or resulted in ‘actual prejudice’ [ under Brecht ] necessarily means t h a t the state court’s harmless error determination was not m e r e ly incorrect, but objectively unreasonable,” Op. at 27. Cf. Deck

, 8 14 F .3d at 959–60 (B ea, J
., dissenting from denial of reh’g en banc). And finally

, hedg ing its bets, the majority purpor ts to eng ag e in an assessment of harmless error u n der Chapman

, but concludes that beca u se the California Court of Appeal reviewed the alleg ed e rr o r under W

atson r ather than Chapman

, its harmlessness de t e rmination was objectively unreasonable. Op. at 28. Then, having dismissed t he state court’s harmlessness determin a t i o n , the majority eng ag es in a de

novo review u nder Brecht to c onclude that the supposed instructional error resulted in actual prejudice to Hall. Op. at 28–30. This circular log ic fails to afford the proper deference
to the theory of harmlessness that reasonably su p p orted the state court’s denial of Hall’s federal claim.

I ndeed, the overwhelming evidence p resented at trial that Hall mu rd ered F oth underscores that it would h a ve been entirely reasonable for the state court to reject Hall’s federal claim on the basis that the error w a s h ar m less. L ena Hix on testified in detail about th e manner in w hich Hall a nd Sherrors committed the mu r d e r, and her testimony was corroborated by

, and consistent with

, other evidence presented at trial. The prosecution a lso admitted evidence that Hix on told a fellow inmate that she had held F o t h d own a s Sherrors and Hall stabbed him

, and that the three of them— Hix on, Sherrors, and Hall—had robbed F oth and killed him, leaving him naked in the bushes. The prosecution introduced evidence corroborating and supporting Hix o n ’ s a c c o u n t o f the murder. F o th’s b ody w as found naked. A n autopsy report revealed that F oth sustained eig hty -three stab w ounds. W h enH A L L V

. H A W S 47

police arrested Sherrors and H all, they found F oth’s class ring in a pair of Hall’s pants. Sherrors a nd H all kept F oth’s car for several day s, claiming i t b e long ed to Hix on’s mother. The burned a nd destroy ed car was found n ear Hall and Sherrors’s apartment the day after the two men saw a news report describing the car. Someone unsuccessfully attempted to use F oth’s ATM card at 8:56 PM the nig ht o f t he murder, a nd

someon e used a cell p hone in F o th’s possession to call a pag er owned by Hi x o n’s boy friend, Michael Washing ton. W h en Hall and Sherrors were arrested and searched, the police found W ashing ton’s p ag e r number in Sherrors’s pocket. Each of these p ieces of e v i dence provides corroboration for Hix on’s testimony

.

Hix on’s testimony also a ccounts for specific details o f F oth’s murder. F o r ex ample, r es ponding officers found a number of items at the scene, including a broken f ing ernail and a watch. Hix on testified that wh e n H all and Sherrors initially let F oth o ut of the trunk o f the car, Sherrors h ad
g rabbed her hands, breaking two of h er a c r y lic fing ernails. She also testified that a fter the murder, Sherrors mentioned dropping his w a t c h at the scene. E vidence showed that F oth’s ATM card was u nsuccessfully used that nig ht; Hix on testified that, following the murder, the trio attempted to use F oth’s ATM card at a convenience store.

Moreover, while the California Court of Appeal a p plied only the W

atson harmless-error standard in assessing the instruction’s prejudicial effect, i ts sound reasoning provides further support for concluding that the denial of Hall’s federal claim was reasonable. The California Court of Appeal asked “whether the error [ w as] prejudicial, i.e., whether i t i sH A L L V

. H A W S

48

reasonably likely th e j ury w ould have reached a different result if the c ourt had n ot g i v e n t h e i nstruction.” The court held:

W e answer this question in the neg ati v e. CAL J I C No. 2.15 specifically i n structed the jurors that they could not infer g u ilt of murder from the defendants’ possession of recently stolen p roperty absent corroborating evidence of g uilt. The inference of g uilt addressed in CAL J I C No. 2.15 i s permissive, not mandatory

, a n d thus the jury w as entitled to credit, or r eject

, t he inference based on its evaluation of the evidence.

I t f urther obs e rved that the jurors were instructed that they needed to find the elements of each c rime

, and the special circumstances, bey ond a r easonable doubt. Most importantly

, the court determined that b e c ause the jury found true the special circumstance that the defendants committed the murder during the commission of a robbery

, it was clear that the jury had “accepted the substance of H i x o n’s testimony
reg arding the d efendants’ involvement in the incident,” and, “[ b] ased on Hix on’s testimony

, there is no rea s onable likelihood that [ the jury ] would have r endered a verdict more favorable to the defendants h a d the court o m i t t ed this instruction.”

B y contrast, the majority walks throug h what it deems to be the flaws in Hix on’s testimony

, sta ting that it is “nearly impossible to believe” h e r account “ of the timeline o f

e vents,” that she “lied about using and possessing Fo t h ’s property ,” that she “downplay ed her own involvement in the crimes,” and that she “l i ed or c hang e d her story reg ardingH A L L V

. H A W S 49

several other details of the nig ht.” Op. at 28–29. Adding up these invented shortcoming s, the majority concludes that the jury “ could have d i sbelieved Hix on,” and “ may h ave been
encourag ed to infer that Hall committed the murder based on the mere fact that he was i n p o s s ession of the ring a nd the A u d i i n the d ay s after the murder.” O p. at 29–30. These speculations do n ot show that the theory of harmlessness that
may have supported the state court’s rejec t i o n of Hall’s d ue process claim was unreasonab l e

. See Ayala

, 135 S. Ct. at 2198–99. I ndeed, the majority ’ s musing s overlook that the jury was presented with the flaws in Hix on’s testimony a nd chose to believe her not only when they convic t e d Sherrors and H al l the first time, but ag a in when they convicted Sherrors at his retrial.

The f act that Sherrors was ret r i e d without the erroneous instruction and w as ag ain convicted of fi r st deg ree murder only confirms that a

ny error in g iving CAL J I C No. 2.15 was harmless. At Sherrors’s retrial, the jury ag ain found true that he committed the crime during the commission of a r obbery

, and he was a g ain sentenced to life in prison w ithout the possibility of parole. People v. Sherrors

, 2014 W L 6907990,
at *1 (Cal. Ct. App. Dec. 9, 2 014). W e the r e f o r e need not wonder what mig ht have happened if Hall was tried without the erro n e o u s instruction. Sherrors’s r econviction affirms that the state court’s rejection of Hall’s due process claim was an entirely reasonable application of controlling precedent, and that any error i n giving the jury CAL J I C No. 2.15 in Hall’s trial did not have a “substantial a n d injurious e ffect o r influence in determining the jury ’s verdict.” Brecht

, 5 0 7 U.S. at 637.H A L L V

. H A W S

50

V

Hall’s y ears-long inaction precludes h im from demonstrating the ty

pe of ex traordinary circumstances required for relief under Rule 6 0(b)(6). And, even assuming that such relief were warranted, Hall has not shown t h at the
per m issive inference created by CAL J I C No. 2.15 v iolated his due p r o cess rig h ts. F inally

, even accepting that instructing the jury with CAL J I C No. 2 .15 amoun t e d t o a constitutional error, the instruction did not actually prejudice Hall. T hese s er i ous e rrors will result in California having to retry a defendant who is undoubtedly g u ilty of the murder he committed.

I t bears repeating tha t “[ a] s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state c ourt’s ruling on the claim being presented in federal court was so lacking in justification that there was

an error well understood a nd comprehen d e d in ex isting law bey ond any possibility f o r f airminded disag reement.” Harrington
, 562 U.S. at 103. T h at st a ndard is not met h ere. The majority ’ s decision to the co n t r ar y disreg ards not only bin d i ng precedents, but the Supreme Court’s numerous admonitions to this circuit that it adhere to AEDPA’s string ent standards.

I therefore respectfully dissent.