FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLARD JAMES HALL,

Petitioner-Appellee,

v.

F. W. HAWS,

Respondent-Appellant.

No. 14-56159

D.C. No.

3:05-cv-00010-WQH-JMA

OPINION

Appeal from the United States District Court

for the Southern District of California

William Q. Hayes, District Judge, Presiding

Argued and Submitted October 19, 2015

Pasadena, California

Filed July 3, 2017

Before: Harry Pregerson and Consuelo M. Callahan,

Circuit Judges and Stanley Allen Bastian,* District Judge.

Opinion by Judge Harry Pregerson;

Dissent by Judge Callahan

* The Honorable Stanley Allen Bastian, District Judge for the U.S.

District Court for the Eastern District of Washington, sitting by

designation.
2 HALL V. HAWS

SUMMARY**

Habeas Corpus

The panel affirmed the district court’s order granting

Willard James Hall’s motion to reopen his habeas

proceedings under Fed. R. Civ. P. 60(b)(6) and its order

conditionally granting Hall’s first amended habeas corpus

petition challenging his California state-court conviction for

first-degree murder unless the State of California grants Hall

a new trial within 90 days.

The panel held that Hall’s Rule 60(b) motion was not

inconsistent with AEDPA’s bar on second or successive

petitions, AEDPA’s statute of limitations, or AEDPA’s

exhaustion requirement. The panel held that the district court

did not abuse its discretion in reopening Hall’s case under

Rule 60(b)(6), in this extraordinary case involving a

petitioner whose habeas petition was dismissed without

reaching the merits of his claim, while his co-defendant was

granted habeas relief on the same claim based on the same

error from the same trial. The panel could not find fault with

the district court’s determination that Hall, a pro se litigant,

proceeded diligently or that the delay between the dismissal

of his petition and the filing of his motion to reopen was

reasonable. 

The panel also held that habeas relief is warranted. The

panel held that the trial court’s use of California Jury

Instruction Criminal 2.15, which allowed the jury to infer

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
HALL V. HAWS 3

guilt of murder from evidence that the defendants were in

possession of recently stolen property plus slight

corroborating evidence, is an error of constitutional

magnitude, and that the California Court of Appeal’s

determination otherwise was objectively unreasonable. The

panel held that it was an unreasonable application of clearly

established federal law for the California Court of Appeal to

evaluate harmlessness under the less stringent standard set

forth in People v. Watson, 46 Cal.2d 818 (1956), rather than

under the more stringent Chapman v. California, 386 U.S. 18

(1967), standard for reviewing errors of constitutional

magnitude. Analyzing harmlessness pursuant to Brecht v.

Abrahamson, 507 U.S. 619 (1993), the panel concluded that

the state court’s harmless error determination was also

unreasonable because the instructional error resulted in actual

prejudice, as there are grave doubts about whether the jury

would have found Hall guilty beyond a reasonable doubt

without the unconstitutional instruction.

Judge Callahan dissented. She wrote that the majority

repeats the error of Sherrors v. Woodford, 425 F. App’x 617

(9th Cir. 2011), which granted the habeas petition of Hall’s

co-defendant based on the same supposed error, even in the

face of additional facts demonstrating Sherrors was wrongly

decided. She wrote that the majority ignores that the codefendant was retried without the suspect instruction and

convicted, and invents an error of constitutional magnitude

where none exists, brushing aside AEDPA standards and the

Supreme Court’s repeated instructions to defer to reasonable

state court decisions. She also wrote that Hall is not

deserving of Rule 60(b) relief, which impermissibly rewards

his inaction and gamesmanship, and unfairlyimposes the cost

of his retrial on the state.
4 HALL V. HAWS

COUNSEL

Matthew Mulford, Deputy Attorney General; Kevin Vienna,

Supervising Deputy Attorney General; Julie L. Garland,

Senior Assistant Attorney General; Office of the Attorney

General, San Diego, California; for Respondent-Appellant.

Holly A. Sullivan and Robert H. Rexrode, San Diego,

California, for Petitioner-Appellee.

OPINION

PREGERSON, Circuit Judge:

This is a rare and extraordinary case. On July 7, 2001,

Ronnie Sherrors and Petitioner Willard Hall as co-defendants

were convicted of first degree murder in state court. The trial

court’s jury instructions included California Jury Instruction

Criminal (“CALJIC”) 2.15, which allowed the jury to infer

guilt of murder from evidence that defendants were in

possession of recently stolen property plus slight

corroborating evidence.

On July 16, 2003, on Sherrors’s and Hall’s consolidated

direct appeal, the California Court of Appeal determined that

the trial court erred when it instructed the jury on CALJIC

2.15. People v. Hall, No. D038857, 2003 WL 21661225, at

*6 (Cal. Ct. App. July 16, 2003) (unpublished). In so

concluding, the Court of Appeal relied on People v. Prieto,

which held that “proof a defendant was in conscious

possession of recently stolen property simply does not lead

naturally and logically to the conclusion the defendant

committed a rape or murder.” 30 Cal. 4th 226, 229 (2003)
HALL V. HAWS 5

(quoting People v. Barker, 91 Cal. App. 4th 1166, 1176

(2001)). The California Court of Appeal, however, affirmed

the convictions of Sherrors and Hall applying the People v.

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

After exhausting state court remedies, Hall filed his own

habeas petition in federal court raising a CALJIC 2.15

instructional error claim. Later Hall quit pursuing this habeas

petition because he believed that he “co-submitted” another

federal habeas petition with Sherrors. Sherrors, who filed the

petition, was granted habeas relief. Hall, who had relied on

Sherrors to advance their instructional error claim on Hall’s

behalf, found himself out in the cold. But the U.S. district

court judge William Q. Hayes in San Diego recognized these

extraordinary circumstances. The district court granted

Hall’s motion to reopen his original habeas proceedings under

Federal Rule of Civil Procedure 60(b)(6) and granted Hall’s

habeas petition consistent with our court’s earlier grant of

habeas relief to Sherrors. For the reasons set forth below, we

affirm.

BACKGROUND

Here’s the story about how the case came about. In

September 1999, after experiencing financial problems and

developing a drug habit, Stephen Foth moved back to his

home town of San Diego to “get his life back in order.” 

Foth’s close friend, Grace Ko, permitted him to stay with her. 

On the afternoon of September 29, 1999, Foth told Ko he was

going to see another friend to borrow some money and would

return later. Foth borrowed Ko’s black Audi A4, her cell

phone, and her Visa card so that he could put some gas in the

car. The next day, Foth’s body was found in a pumpkin
6 HALL V. HAWS

patch. He had bled to death after being stabbed

approximately 83 times.

Nine days after the body was found, Lena Hixon told a

friend that she witnessed “something . . . pretty bad” and that

two men had threatened her life. The friend notified the

police after Hixon refused to do so. At first, Hixon told the

police that she committed Foth’s murder with two men

named Benjamin Wilson and Terrence Smallgreen. A few

days later, Hixon changed her story and told the police that

Ronnie Sherrors and Willard Hall were involved in the

murder. Sherrors and Hall were charged with the murder of

Stephen Foth.1 Hixon entered into a plea agreement in which

she agreed to plead guilty to assault with a deadly weapon

and conspiracy to sell cocaine, and to testify against Sherrors

and Hall.

Although inconsistent at times, Hixon’stestimonywasthe

key to the prosecution’s case. Here is Lena Hixon’s story:

On September 29, 1999, Foth approached Hixon and

asked if she knew where he could buy some rock cocaine. 

She did and the two drove in Ko’s Audi to an apartment

where Sherrors and Hall were living. Hixon, Sherrors, and

Hall handled drug sales for Hixon’s boyfriend, Michael

Washington. Sherrors, Hall, and Foth drove off together in

the Audi, leaving her behind. After 15 to 20 minutes,

Sherrors and Hall returned in the Audi without Foth. Hixon

believed that Foth had loaned the Audi to Sherrors and Hall

in exchange for drugs. She got in the Audi with Sherrors and

Hall to drive around and smoke some marijuana.

1

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

After driving around in the Audi with Sherrors and Hall,

Sherrors drove off the highway and parked the Audi in a dirt

lot. Sherrors and Hall then opened the trunk, from which

Foth climbed out. Hixon testified that she demanded to know

what was going on, but Sherrors threatened her and grabbed

her hands, breaking two of her acrylic fingernails.

Then, Sherrors began to stab Foth, while Foth was

tussling with Hall. Sherrors forced Hixon to stab Foth. 

Sherrors and Hall stripped Foth and threw his body into the

bushes. They put Foth’s clothes in the trunk and drove away

in the Audi. Hixon, Sherrors, and Hall stopped at a gas

station convenience store where Hall was thwarted trying to

use Foth’s ATM card.

Katherine Davis, Hixon’s fellow inmate at Los Colinas

Women’s Detention Center, also testified at trial. Hixon had

spoken to Davis on several occasions about the incidents on

September 29. In these conversations, Hixon again pointed

the finger at Sherrors and Hall, but her story to Davis differed

from the story she told to the police. Hixon’s story to Davis

implied that Hixon was much more involved in the crime than

the story she told to the police.

The State’s case against Hall relied overwhelmingly on

Hixon’s story. In addition to Hixon’s version of events, the

State’s evidence against Hall included (1) testimony that Hall

was seen sitting in the passenger side of the Audi days after

the crime; (2) testimony that Sherrors and Hall had seen a

newscast mentioning the Audi, and the next morning the Audi

was found burned; and (3) Foth’s high school class ring found

in a pair of Hall’s pants. None of the evidence found at the

crime scene—a shirt, a pair of size eight sneakers, a
8 HALL V. HAWS

wristwatch, a broken fingernail, a pair of bloodstained socks,

and a shoe print in the soil—was linked to Hall.

Crucial to the federal habeas appeal before us now, at the

close of trial, the state jury was instructed on CALJIC 2.15,

which states:

If you find that a defendant was in possession

of recently stolen property, the fact of that

possession is not by itself sufficient to prove

an inference that the defendant is guilty of the

crime of murder. Before guilt may be

inferred, there must be corroborating evidence

tending to prove a defendant’s guilt. 

However, this corroborating evidence need

only be slight and need not by itself be

sufficient to warrant an inference of guilt.

As corroboration, you may consider the

attributes of possession, time, place and

manner; that the defendant had an opportunity

to commit the crime charged; the defendant’s

conduct; his false or contradictory statements,

if any; and any other statements that may have

been made with reference to the property.

On July 7, 2001, the jury convicted Sherrors and Hall of

first-degree murder. Sherrors and Hall were both sentenced

to life without the possibility of parole, plus one year.

PROCEDURAL HISTORY

On July 16, 2003, on consolidated direct appeal, the

California Court of Appeal found that it was error to instruct
HALL V. HAWS 9

the jury pursuant to CALJIC 2.15, but affirmed Sherrors and

Hall’s convictions under the People v. Watson, 46 Cal. 2d

818, 836 (1956), harmless error standard. People v. Hall, No.

D038857, 2003 WL 21661225, at *6 (Cal. Ct. App. July 16,

2003) (unpublished). The California Supreme Court

summarily denied their petitions for review.

On January 3, 2005, Hall filed a pro se habeas petition

under 28 U.S.C. § 2254 in federal district court. On March

15, 2005, Hall filed his First Amended Petition for Writ of

Habeas Corpus. His petition alleged the following claims:

(1) the trial court gave an improper modification of jury

instruction CALJIC 2.15; (2) the trial court gave an improper

modification of jury instruction CALJIC 8.81.17; and (3) the

trial court provided an incomplete verdict form to the jury. 

The California Attorney General’s Office and the Warden

F.W. Haws (“the State”) moved to dismiss the petition on the

ground that Hall had failed to exhaust the second claim in

state court.

Because Hall had failed to demonstrate good cause for

failing to exhaust the second claim, see Rhines v. Weber,

544 U.S. 269, 278 (2005), the district court informed Hall on

January 25, 2006 of his two options: (1) voluntarily dismiss

his entire federal petition and return to state court to exhaust

his unexhausted claim, or (2) formally abandon his

unexhausted claim and proceed with his two exhausted

claims. On February 28, 2006, Hall filed a motion for a 30-

day extension to file a formal abandonment, which the district

court granted. Thereafter, Hall made no further filings. He

did not file a formal abandonment or any other motion. As a

result of Hall’s failure to comply with the district court’s

order, the district court dismissed his petition without

prejudice on May 19, 2006.
10 HALL V. HAWS

Meanwhile, in 2005, Sherrors, Hall’s co-defendant, was

also advancing a federal habeas petition, propounding the

same CALJIC 2.15 argument as Hall. Hall believed that he

was a “co-submitter” in these filings based on Sherrors’s

representations to him and their history of shared appeals. On

November 2, 2007, the district court granted Sherrors’s

habeas petition, finding that the use of CALJIC 2.15

constituted prejudicial constitutional error. The State

appealed to the Ninth Circuit.

On May 29, 2009, Hall filed a “motion to join” Sherrors’s

case. The district court construed the motion to join as a Rule

60(b) motion to reopen his habeas proceedings. The district

court dismissed the motion without prejudice, stating that

Hall could re-file within 60 days of receiving notice of the

Ninth Circuit’s decision in Sherrors’s appeal. On August 31,

2011, the State served on Hall a copy of this court’s decision

in Sherrors v. Woodford, 425 F. App’x 617 (9th Cir. 2011),

which affirmed the district court’s grant of habeas relief to

Sherrors.

Within 60 days of receiving notice of our decision in

Sherrors, Hall re-filed his motion to join Sherrors’s case. In

his motion, Hall stated that he “had a good faith reason to

believe his interests were included in any outcome of

[Sherrors’s case]” because Sherrors had communicated to

Hall and to the district court that the petition was “cosubmitted,” and because “throughout the state courts

[process], counsel for both co-defendants used this language

of joinder to ensure that both defendants benefitted from any

success through their appeals.” After the State opposed the

motion, a pro se Hall filed a motion to concede to the State’s

opposition.
HALL V. HAWS 11

On May 22, 2012, the district court appointed counsel for

Hall because “a denial of Hall’s motion under Rule 60(b) may

raise significant due process issues.” With the assistance of

counsel, Hall filed a motion for relief from judgment under

Rule 60(b). Hall argued that applying the district court’s May

19, 2006 judgment dismissing his petition prospectively was

no longer equitable under Rule 60(b)(5), and that

extraordinary circumstances existed under Rule 60(b)(6).

The district court granted Hall’s motion under Rule

60(b)(6), finding that extraordinary circumstances—an

intervening change in law, i.e., Sherrors v.

Woodford—warranted relief from judgment. The district

court then concluded that habeas relief was warranted based

on the erroneous instruction of CALJIC 2.15. The State

appealed both the grant of Rule 60(b)(6) relief and habeas

relief.

DISCUSSION

I. Rule 60(b) Motion

A district court’s grant of relief from judgment under

Federal Rule of Civil Procedure Rule 60(b) is reviewed for

abuse of discretion. Casey v. Albertson’s, Inc, 362 F.3d 1254,

1257 (9th Cir. 2004). “A district court abuses its discretion

if it does not apply the correct law or if it rests its decision on

a clearly erroneous finding of material fact.” Id. Any

questions of law underlying the district court’s decision are

reviewed de novo. Jeff D. v. Kempthorne, 365 F.3d 844,

850–51 (9th Cir. 2004).
12 HALL V. HAWS

Under Rule 60(b), a district court may relieve a party

from a final judgment in certain circumstances.2 Fed. R. Civ.

P. 60(b). In the habeas context, Rule 60(b) applies to the

extent that it is not inconsistent with the Anti-Terrorism and

Effective Death Penalty Act (“AEDPA”). Gonzalez v.

Crosby, 545 U.S. 524, 529 (2005) (citing 28 U.S.C. § 2254

Rule 11 and Fed. R. Civ. P. 81(a)(2)). AEDPA poses

significant hurdles for a Rule 60(b) petitioner, but “Rule

60(b) has an unquestionably valid role to play in habeas

cases.” Gonzalez, 545 U.S. at 534.

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

following reasons:

(1) mistake, inadvertence, surprise, or excusable

neglect;

(2) newly discovered evidence that, with reasonable

diligence, could not have been discovered in time to

move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or

extrinsic), misrepresentation, or misconduct by an

opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released or

discharged; it is based on an earlier judgment that has

been reversed or vacated; or applying it prospectively

is no longer equitable; or

(6) any other reason that justifies relief.

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

The State argues that Hall’s Rule 60(b) motion runs afoul

of three of AEDPA’s provisions: (1) the bar on second or

successive petitions under 28 U.S.C. § 2244(b)(1); (2) the

one-year statute of limitations under 28 U.S.C. § 2244(d); and

(3) the exhaustion rule under 28 U.S.C. § 2254(b). In

addition, the State argues that the district court abused its

discretion by granting relief under Rule 60(b)(6). For the

reasons discussed below, we disagree.

A. AEDPA’s Bar on Second or Successive Petitions

Under AEDPA’ssecond orsuccessive petition provisions,

any claim that has been adjudicated in a previous petition

must be dismissed. 28 U.S.C. § 2244(b)(1). The State argues

that Hall’s Rule 60(b) motion is a disguised successive

habeas petition that asserts a previously adjudicated claim

and therefore the district court should have dismissed it

pursuant to § 2244(b)(1).

While there is no bright-line rule for distinguishing

between a bona fide Rule 60(b) motion and a disguised

second or successive habeas petition, the Supreme Court’s

decision in Gonzalez v. Crosby informs our analysis. See

Jones v. Ryan, 733 F.3d 825, 834 (9th Cir. 2013). In

Gonzalez, the district court dismissed Gonzalez’s habeas

petition as untimely, and the Eleventh Circuit Court of

Appeals denied a certificate of appealability. 545 U.S. at 527. 

After a change in law regarding the statute of limitations,

Gonzalez filed a Rule 60(b) motion challenging the district

court’s dismissal. Id. Both the district court and the Eleventh

Circuit ruled that Gonzalez could not seek Rule 60(b) relief

because the motion was a disguised second or successive

petition. Id. at 528. The Supreme Court disagreed. The

Court held that Gonzalez’s Rule 60(b) motion challenged the
14 HALL V. HAWS

district court’s earlier ruling on a non-merits aspect of the

proceedings—statute of limitations—and therefore it was not

equivalent to a successive habeas petition. Id. at 533–34.

Thus, according to Gonzalez, a bona fide Rule 60(b)

motion “attacks, not the substance of the federal court’s

resolution of a claim on the merits, but some defect in the

integrity of the federal habeas proceedings.” Id. at 532. In

contrast, a second or successive habeas corpus petition “is a

filing that contains one or more ‘claims,’” defined as

“asserted federal bases for relief from a state court’s

judgment of conviction.” Id. Put another way, “if neither the

motion itself nor the federal judgment from which it seeks

relief substantively addresses the federal grounds for setting

aside the movant’s state conviction, allowing the motion to

proceed as denominated creates no inconsistency with the

habeas statute or rules.” Id. at 533.

Hall’s motion conforms to Gonzalez’s description of a

true Rule 60(b) motion. First, the federal judgment from

which Hall seeks relief—the order dismissing his petition for

failure to comply with the district court’s July 25, 2006

exhaustion order—does not substantively address the federal

grounds for setting aside his conviction. The dismissal was

based on Hall’s failure to comply with the district court’s

exhaustion order; it was a non-merits-based ruling. Second,

Hall’s Rule 60(b) motion only explains the circumstances

why his original petition was dismissed, i.e. that Hall failed

to comply with the court’s exhaustion order because he

believed he had co-submitted another habeas petition with

Sherrors. Hall’s motion to reopen does not present any

substantive ground for setting his conviction aside. 

Therefore, because neither the district court’s dismissal nor

Hall’s motion to reopen address the merits for setting Hall’s
HALL V. HAWS 15

conviction aside, allowing the motion to proceed is not

inconsistent with AEDPA. Id. at 533.

Our conclusion is further supported by this court’s

decision in Butz v. Mendoza-Powers, 474 F.3d 1193 (9th Cir.

2007) (per curiam). In Butz, Petitioner Butz applied for

authorization to file a second or successive habeas petition

under 28 U.S.C. § 2254 after his original petition was

correctly dismissed for failure to pay the filing fee. 474 F.3d

at 1194. Butz claimed that his first petition had been

dismissed due to neglect by his prior counsel, despite Butz’s

own diligence. Id. This court held that when “the district

court dismisses the [habeas] petition for failure to pay the

filing fee or to comply with the court’s orders, the district

court does not thereby reach the ‘merits’ of the claims

presented in the petition and a Rule 60(b) motion challenging

the dismissal is not treated as a second or successive

petition.” Id. (emphasis added). Like in Butz, Hall “does not

seek to add new claims to his petition or to adduce new

evidence or cite new law in support of claims previously

adjudicated on the merits.” Id. at 1195. Like in Butz, Hall

simply failed to comply with the court’s order and, as a result,

his petition was dismissed. Like in Butz, we conclude that the

district court’s dismissal of the petition does not preclude

Hall from filing a Rule 60(b) motion. See id. (“Because a

Rule 60(b) motion by Butz would not be the equivalent of a

second or successive habeas petition, his application for

authorization to file such a petition is unnecessary.”).3

3 The State attempts to distinguish Butz by pointing out that Butz (1)

arose from a gatekeeping motion filed under 28 U.S.C. § 2244(b)(3)(A);

and (2) concerned a procedural dismissal with prejudice rather than a

dismissal without prejudice. Nothing in Butz suggests that its holding was

limited to gatekeeping motions or dismissals with prejudice and the State
16 HALL V. HAWS

In sum, we agree with the district court that Hall’s Rule

60(b) motion is a true Rule 60(b) motion and does not run

afoul of AEDPA’s bar against second or successive petitions.

B. AEDPA’s Statute of Limitations

The State argues that even if Hall’s Rule 60(b) motion

were a true Rule 60(b) motion (meaning it did not raise a

“claim” within the meaning of Gonzalez), it is still an

“application” for relief to which the district court was

required to apply AEDPA’s statute of limitations before

considering any of the discretionary provisions contained in

Rule 60(b).4 We reject this contention. As the Supreme

Court made clear in Gonzalez, an “‘application’ for habeas

relief is a filing that contains one or more ‘claims.’” 

Gonzalez, 545 U.S. at 530. Because Hall’s Rule 60(b) motion

did not contain any “claim,” supra I.A.1, it is not an

application for habeas relief, and therefore AEDPA’s statute

of limitations does not apply See id. at 533 (“[W]hen no

‘claim’ is present, there is no basis for contending that the

Rule 60(b) motion should be treated like a habeas corpus

application.”).

has offered no argument as to why these two facts were crucial to the

court’s decision.

4 The State, relying on a footnote fromGonzalez, believes Hall’s Rule

60(b) motion to be an “application” because the district court’s dismissal

of Hall’s original petition rested on a correct ruling rather than an

erroneous ruling. In this Gonzalez footnote, the Court further explained

the term “on the merits,” stating that a habeas petitioner does not make a

“claim” when he “merely asserts that a previous ruling which precludes

a merits determination was in error.” Gonzalez v. Crosby, 545 U.S. 529,

532 n.4 (2005). The footnote simply provided an example of when a

claim exists; it was not intended as the definition of a claim.
HALL V. HAWS 17

C. Exhaustion under AEDPA

In its reply brief, the State argues that Hall’s petition

contained an unexhausted claim both before the dismissal and

after the district court granted relief under Rule 60(b), and

therefore, the use of Rule 60(b) to reopen Hall’s case is

inconsistent with AEDPA.

It is true that Hall initially presented an unexhausted

claim in his habeas petition, which prompted the district court

to order Hall to either voluntary dismiss the entire petition or

formally abandon the unexhausted claim. Hall requested an

extension to file a formal abandonment, signaling a desire to

proceed with the second option. When Hall contacted the

district court again on May 29, 2009 with the intent to “join”

his co-defendant’ssuccessful habeas petition, Hall mentioned

only the CALJIC 2.15 claim, which Hall had already

exhausted in state court in 2003. Hall did not mention the

unexhausted claim. The district court, liberally construing

this pro se petitioner’s motion, interpreted Hall’s motion to

join as a “motion to reopen his Petition for Writ of Habeas

Corpus filed in this case on January 3, 2005 and to proceed

on the exhausted first and third claims for relief.” In other

words, the district court interpreted Hall’s motion to join as

both a motion to reopen and a formal abandonment of the

second unexhausted claim. This was a fair and logical

interpretation of Hall’s motion given the procedural history

of the case. As noted above, Hall had previously indicated a

desire to abandon the unexhausted claim. His “motion to

join” confirmed this desire. Given that no unexhausted claim

was presented or considered, we find no inconsistency with

AEDPA.
18 HALL V. HAWS

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

As stated above, Rule 60(b) “allows a party to seek relief

from a final judgment, and request reopening of his case,

under a limited set of circumstances.” Gonzalez, 545 U.S. at

528. Rule 60(b)(6), the provision under which Hall brought

his motion, permits reopening for “any . . . reason that

justified relief” other than the enumerated reasons set forth in

Rule 60(b)(1)–(5).5 Fed. R. Civ. P. 60(b). A movant seeking

relief under Rule 60(b)(6) must show “extraordinary

circumstances justifying the reopening of a final judgment.” 

Gonzalez, 545 U.S. at 535. Although such circumstances

occur rarely in the habeas context, Rule 60(b)(6) can and

should be “used sparingly as an equitable remedy to prevent

manifest injustice.” United States v. Alpine Land &

Reservoir Co., 984 F.2d 1047, 1049 (9th Cir. 1993).

“[T]he decision to grant Rule 60(b)(6) relief is a case-bycase inquiry that requires the trial court to intensively balance

numerous factors, including the competing policies of the

finality of judgments and the incessant command of the

court’s conscience that justice be done in light of all the

facts.” Phelps v. Alameida, 569 F.3d 1120, 1133 (9th Cir.

2009) (quoting Stokes v. Williams, 475 F.3d 732, 736 (6th

Cir. 2007)). In applying Rule 60(b)(6) in habeas cases, we

have considered six factors described in Phelps v. Alameida:

(1) a showing of extraordinary circumstances, such as a

change in intervening law; (2) the petitioner’s exercise of

diligence in pursuing the issue during federal habeas

5 Before the district court, Hall also argued for relief under Rule

60(b)(5). The district court did not grant relief under Rule 60(b)(5) and

Hall does not argue that it applies now. Therefore, we do not address

whether relief under Rule 60(b)(5) would have been appropriate.
HALL V. HAWS 19

proceedings; (3) interest in finality; (4) delay between the

finality of the judgment and the motion for Rule 60(b)(6)

relief; (5) degree of connection between the extraordinary

circumstance and the decision for which reconsideration is

sought; and (6) comity. See id. at 1135–40. But we have

stated that these factors are not “a rigid or exhaustive

checklist.” Id. at 1135. Rather, “Rule 60(b)(6) is a grand

reservoir of equitable power, and it affords courts the

discretion and power to vacate judgments whenever such

action is appropriate to accomplish justice.” Id. (internal

citations and quotation marks omitted).

This is an especially unique case in which a perfect storm

produced a situation in which Hall would have been subject

to “manifest injustice” if not for Rule 60(b)(6). See Alpine

Land & Reservoir Co., 984 F.2d at 1049. Most notably, this

case involves a petitioner whose habeas petition was

dismissed without reaching the merits of his claim, while his

co-defendant was granted habeas relief on the same claim

based on the same error from the same trial. Given these key

facts, Hall’s motion for relief under Rule 60(b)(6) is based on

more than just a plea that a misunderstanding occurred. 

These extraordinary circumstances are the reason for Hall’s

failure to comply with the district court’s January 25, 2006

order, and therefore, the reason his petition was dismissed. 

We cannot say that the district court was wrong in

recognizing that extraordinary circumstances warrant the

reopening of Hall’s case here. See Buck v. Davis, 137 S. Ct.

759, 778 (2017) (“In determining whether extraordinary

circumstances are present, a court may consider a wide range

of factors,” including “the risk of injustice to the parties.”).
20 HALL V. HAWS

Moreover, we cannot find fault with the district court’s

determination that Hall proceeded diligently or that the delay

between the dismissal of Hall’s petition and the filing of his

motion to reopen was reasonable. We have said that

reasonable diligence “does not require an overzealous or

extreme pursuit of any and every avenue of relief;” instead,

it “requires the effort that a reasonable person might be

expected to deliver under his or her particular circumstances.” 

Brooks v. Yates, 818 F.3d 532, 535 (9th Cir. 2016) (quoting

Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011)). Hall, a

pro se litigant,6

relied on his co-defendant’s assurances that

his claims were being advanced in the co-defendant’s

proceedings. The California Court of Appeal and the

California Supreme Court adjudicated Hall’s case in

conjunction with that of his co-defendant’s. With this in

mind, and having great familiaritywith the procedural history

and circumstances of this case, the district court concluded

that Hall was diligent and his delay was reasonable.

Further, we disagree with the State’s contention that the

district court “minimized” the State’s interests in finality and

comity. In Sherrors, this court ruled that the very same trial

and resulting conviction was constitutionally compromised. 

The State could not in good faith argue reliance on the

finality of Hall’s conviction because there had been no

finality for Sherrors, Hall’s co-defendant. Accordingly, the

State’s interest in finality deserved “little weight.” Cf. Buck,

137 S. Ct. at 779 (noting that the State’s interest in finality

“deserve[d]little weight” where the State acknowledged error

6 When Hall filed his original federal habeas petition on January 3,

2005, he was pro se. Later on, on March 12, 2012, the district court

appointed counsel to assist Hall in reopening his habeas proceedings under

Rule 60(b).
HALL V. HAWS 21

in similar cases). Similarly, the State cannot argue that a

second retrial will harm and prejudice the State. The State

received this court’s decision affirming the grant of habeas

relief in Sherrors v. Woodford on March 31, 2011. 

Thereafter, it chose to oppose Hall’s motion to join on

December 12, 2011. Had the State truly been concerned with

efficiency, it could have opted to retry Sherrors and Hall

together in lieu of its opposition to the motion to join and

subsequent appeal.

For these reasons, we affirm the district court’s grant of

Rule 60(b) relief to Hall.

II. Habeas Relief

A. AEDPA Review of the State Court’s Instructional

Error Determination

We review a district court’s decision on a petition for writ

of habeas corpus de novo. Deck v. Jenkins, 814 F.3d 954,

978 (9th Cir. 2016). Because Hall’s petition is governed by

AEDPA, Hall can prevail on a claim that was adjudicated on

the merits in state court only if he can show that the

adjudication:

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

or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States; or
22 HALL V. HAWS

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d).

Under the “contrary to” clause, a federal habeas court

may grant habeas relief if the state court arrives at a

conclusion opposite to that reached by the Supreme Court on

a question of law or if the state court decides a case

differently than the Supreme Court has on a set of materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362,

412–13 (2000). Under the “unreasonable application” clause,

a federal court may grant habeas relief if the state court

identifies the correct governing legal principle from the

Supreme Court’s decisions but unreasonably applies that

principle to the facts of the petitioner’s case. Id.

On direct appeal in Hall’s case, the California Court of

Appeal determined that it was error to instruct the jury on

CALJIC 2.15, but affirmed Hall’s conviction, concluding that

the error was harmless. In doing so, the California Court of

Appeal did not find the error to be of constitutional

magnitude, and consequently applied the harmless error

standard set forth in People v. Watson.

7 As discussed below,

7 The Watson standard is used to review non-constitutional, trial type

errors. Watson requires a reviewing court to determine whether “it is

reasonably probable that a result more favorable to the appealing party

would have been reached in the absence of the error.” 46 Cal. 2d 818, 836

(1956). In contrast, the more stringent standard, under Chapman v.

California, is used to review errors of constitutional magnitude, which

requires a reviewing court to decide whether the error was “harmless

beyond a reasonable doubt.” 386 U.S. 18, 24 (1967).
HALL V. HAWS 23

the California Court of Appeal’s decision was an

unreasonable application of clearly established federal law.

The Supreme Court has stated that the Due Process

Clause of the Fourteenth Amendment “protects the accused

against conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime with

which he is charged.” Francis v. Franklin, 471 U.S. 307, 313

(1985) (quoting In re Winship, 397 U.S. 358, 364 (1970)). 

“This bedrock, axiomatic and elementary constitutional

principle prohibits the State from using evidentiary

presumptions in a jury charge that have the effect of relieving

the State of its burden of persuasion beyond a reasonable

doubt of every essential element of a crime.” Id. (internal

quotation marks, citations, and alternations omitted).

In this case, the State used CALJIC 2.15,8a jury charge

that allows, but does not require, a jury to infer a specified

conclusion if the government has proved certain predicate

facts, also known as a permissive inference. Schwendeman

v. Wallenstein, 971 F.2d 313, 316 (9th Cir. 1992). “A

permissive inference violates the Due Process Clause only if

8 As a reminder, CALJIC 2.15 states: If you find that a defendant was

in possession of recently stolen property, the fact of that possession is not

by itself sufficient to prove an inference that the defendant is guilty of the

crime of murder. Before guilt may be inferred, there must be

corroborating evidence tending to prove a defendant’s guilt. However,

this corroborating evidence need only be slight and need not by itself be

sufficient to warrant an inference of guilt.

As corroboration, youmay consider the attributes of possession, time,

place and manner; that the defendant had an opportunity to commit the

crime charged; the defendant’s conduct; his false or contradictory

statements, if any; and any other statements that may have been made with

reference to the property.
24 HALL V. HAWS

the suggested conclusion is not one that reason and common

sense justify in light of the proven facts before the jury.” 

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

Allen, 442 U.S. 140, 156–57, 165 (1979) (explaining that a

lack of “rational connection” between the presumed fact and

the proven facts would render such a permissive inference

invalid under the Due Process Clause). Put another way, “[a]

permissive inference is constitutional so long as it can be said

‘with substantial assurance’ that the inferred fact is ‘more

likely than not to flow from the proved fact on which it is

made to depend.’” United States v. Rubio-Villareal, 967 F.2d

294, 296 (9th Cir. 1992) (en banc) (quoting Ulster Cty.,

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

In People v. Prieto, the California Supreme Court held

that use of CALJIC 2.15 in nontheft offenses is improper

because “[p]roof a defendant was in conscious possession of

recently stolen property simply does not lead naturally and

logically to the conclusion the defendant committed a rape or

murder.” 30 Cal. 4th 226, 249 (2003) (emphasis added)

(internal quotations omitted) (quoting People v. Barker,

91 Cal. App. 4th 1166, 1176 (2001)). Here, the California

Court of Appeal, relying on Prieto, held that it was error to

instruct the jury on CALJIC 2.15. The California Court of

Appeal failed to recognize, however, that the instructional

error was of constitutional magnitude.9

9

 California courts have disagreed that this instructional error is of a

constitutional magnitude. See, e.g., People v. Hayes, No. D060781, 2013

WL 3187230, at *20 (Cal. Ct. App. June 25, 2013) (unpublished) (“Our

Supreme Court has repeatedly held that the Watson standard applies in this

context, and has expressly rejected the contention that the error in question

is one of constitutional magnitude.” (internal citations omitted)); People

v. Moore, 51 Cal. 4th 1104, 1132–33 (2011) (applying the Watson
HALL V. HAWS 25

Under clearly established Supreme Court law, the trial

court violated Hall’s federal due process rights by instructing

the jury that it could presume Hall murdered Foth from the

fact that Hall possessed Foth’s property (plus “slight”

corroborating evidence) because the presumed fact does not

follow from the facts established. See Francis, 471 U.S. at

314–15; Ulster Cty., 442 U.S. 156–57. Although the Prieto

court did not expressly discuss federal due process, Prieto

relied on People v. Barker, which does discuss it, and Prieto

used the same sort of language that the Supreme Court used

in Francis and Ulster County to describe when a permissive

inference jury instruction is unconstitutional. An inference

that is not“natural[] or logical[],” as Prieto described, is

exactly the kind of inference not justified by “reason or

common sense,” see Francis, 471 U.S. at 314, and not

“flow[ing] from the proved fact,” see Ulster Cty., 442 U.S. at

166 n.28.

The dissent asserts that the instructional error in this case

is only one of state law because Prieto never says that the

permissive inference from CALJIC 2.15 is “irrational.” 

Dissent at 41–42. But this overly critical argument about

word choice misses the point. Francis never uses the word

“irrational.” And while Ulster County refers to a “rational

connection” between inferred fact and proved fact, 442 U.S.

at 156–57, it also explains that whether “the presumed fact is

more likely than not to flow from the proved fact” is how we

determine whether a permissive inference is constitutional. 

442 U.S. at 166 n.28. Ultimately, the seminal Supreme Court

cases on this issue all say the same thing: a permissive

inference violates due process when the presumed fact does

standard and reasoning that Prieto does not mean “drawing a connection

between possession and guilt is irrational”). We disagree.
26 HALL V. HAWS

not follow from the facts established. See Francis, 471 U.S.

at 314–15; Ulster Cty., 442 U.S. at 166 n.28.

The relevant inquiry to determine whether the

instructional error was of constitutional magnitude is whether

the suggested conclusion—that Hall murdered Foth—is one

that reason and common sense justify in light of the proved

fact that Hall was in possession of Foth’s ring some time after

Foth was killed. Proof that Hall possessed Foth’s ring does

not make it “more likely than not” that Hall murdered Foth. 

The use of CALJIC 2.15 in this case constitutes an

instructional error of constitutional magnitude, and the

California Court of Appeal’s determination otherwise was

objectively unreasonable. See Ulster Cty., 442 U.S. at 166.10

10 The dissent argues that the California Court of Appeal did not

address Hall’s claim that the jury instruction violated the federal

constitution, so there is no reasoned decision on that claim. Accordingly,

the dissent contends that we should use the gap-filling approach from

Harrington v. Richter, 562 U.S. 86 (2011), which applies when there is no

reasoned decision on a particular claim. We disagree and note that

throughout the lengthy litigation of this case, the State never has taken the

position that Harrington applies.

The Harrington gap-filling approach applies when the state court fails

to set forth any reasoning for denying a claim. That is not the case here.

In Hall’s brief to the California Court of Appeal, he argued that use

of CALJIC 2.15 violated due process. Although the dissent contends that

the California Court of Appeal addressed only why the use of CALJIC

2.15 was an error ofstate law, the Court of Appeal’s opinion also included

grounds for rejectingHall’s constitutional argument. The California Court

of Appeal relied on Prieto, which in turn relies on Barker, a case that

discusses when a permissive inference instruction comports with due

process. People v. Barker, 91 Cal. App. 4th 1166, 1174 (2001). These

cases provide enough insight into the state court’s reasoning for rejecting

Hall’s constitutional claim.
HALL V. HAWS 27

B. Brecht Harmless Error Review

But the inquiry does not end the conclusion that the state

court’s decisionwas unreasonable in finding no constitutional

violation. Habeas relief on a trial error claim is appropriate

only if the error results in “actual prejudice.” Davis v. Ayala,

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

507 U.S. 619, 637 (1993)). Under the Brecht test for actual

prejudice, “relief is proper only if the federal court has ‘grave

doubt about whether a trial error of federal law had

substantial and injurious effect or influence in determining

the jury’s verdict.’” Mays v. Clark, 807 F.3d 968, 980 (9th

Cir. 2015) (quoting Ayala, 135 S. Ct. at 2197–98).

The Brecht standard is so stringent that it “subsumes” the

AEDPA/Chapman standard for review of a state court

determination of the harmlessness of a constitutional

violation. Deck v. Jenkins, 814 at 954, 985 (quoting Fry v.

Pliler, 551 U.S. 112, 120 (2007)). We need not apply both a

Brecht review and an AEDPA/Chapman review because “[a]

determination that the error resulted in ‘actual prejudice’

[under Brecht] necessarily means that the state court’s

harmless error determination was not merely incorrect, but

objectively unreasonable.” Id.

Regardless, even if we applied the gap-filling approach from

Harrington, we would still hold that the result reached by the California

Court of Appeal was unreasonable. The hypothetical “arguments or

theories” that could have supported the denial of relief are, as the dissent

suggests, that the permissive inference in CALJIC 2.15 is not “irrational”

so it cannot amount to a violation of due process, or that the instruction

was harmless even under Chapman. We have addressed those arguments

in the body of our opinion.
28 HALL V. HAWS

Even if we were to separately analyze the state court’s

harmless error determination under AEDPA/Chapman before

engaging in a separate Brecht analysis, we would find that the

California Court of Appeal’s harmless error determination

was objectively unreasonable. As discussed above,

instructing the jury on CALJIC 2.15 violated Hall’s due

process rights, and therefore harmless error should have been

analyzed under the Chapman standard for constitutional

violations. See Chapman v. California, 386 U.S. 18, 23–24

(1967) (holding that a “harmless beyond a reasonable doubt”

standard applies to constitutional trial type errors). It was an

unreasonable application of clearlyestablished federal law for

the California Court of Appeal to evaluate Hall’s claim under

the less stringent Watson standard.

Our Brecht analysis also reveals that the state court’s

harmless error determination was unreasonable because the

instructional error resulted in actual prejudice. Like the two

magistrate judges, the two district court judges, and another

panel majority of our court that have reviewed this trial error

under Brecht, we have “grave doubts” about whether the jury,

without having heard the erroneous CALJIC 2.15 instruction,

would have found Hall guilty beyond a reasonable doubt. 

The State’s case against Hall relied overwhelmingly on the

testimony of Lena Hixon, whose story changed numerous

times before trial and whose statements under oath were

contradicted by the objective evidence at trial and by the

other witnesses.

First, it is nearly impossible to believe Hixon’s testimony

of the timeline of events given the judicially noticed distance

between the different locations where each event allegedly

took place. Second, Hixon lied about using and possessing

Foth’s property. She testified that she never saw, touched, or
HALL V. HAWS 29

took any of Foth’s property or used Foth’s cell phone. But

phone records showed that days after the murder, Hixon used

Foth’s phone to call a customer and her fingerprints were

found on some of Foth’s belongings. In addition, months

after the crime, a woman by the name of Mikiisha Perine

found incriminating items among those she was storing on

behalf of Hixon’s boyfriend, Michael Washington. Perine

found a blue purse containing Hixon’s social security card,

Ko’s Visa and Costco cards, Foth’s ATM card, and three of

Foth’s business cards. Third, Hixon downplayed her own

involvement in the crimes. Initially, Hixon denied ever

stabbing Foth. Then, she told police that she did stab Foth

once, but that Sherrors forced her to stab Foth. Then, she told

fellow inmate Katherine Davis that she used her shirt over the

knife to avoid leaving fingerprints and that she was surprised

at how the knife felt as it went into the body. In addition,

Hixon testified that she broke a fingernail when Sherrors

grabbed her at the crime scene, but later she told Davis she

broke it while she was holding Foth down or helping drag his

body. Lastly, Hixon lied or changed her story regarding

several other details of the night of the murder. Most notably,

Hixon first identified two other men as the killers, but later

pointed her finger at Sherrors and Hall. She also told police

that Foth approached her for cocaine, but she told Davis that

Foth approached her for sex. She also testified that a shirt

found at the crime scene belonged to Sherrors, but forensic

testing eliminated Sherrors, Hall, and Hixon as habitual

wearers of the shirt.

Given these non-trivial inconsistencies, the jury could

have disbelieved Hixon entirely. After all, she had a motive

to lie; she was offered a plea agreement in exchange for her

testimony against Sherrors and Hall. Aside from Hixon, the

only other evidence against Hall was his possession of Foth’s
30 HALL V. HAWS

ring and his presence as a passenger in the Audi. No physical

evidence linked Hall to the murder.

CALJIC 2.15 invited and encouraged the jury to infer that

Hall was guilty of murder from his possession of Foth’s ring

plus “slight” corroborating evidence. The instruction defined

“slight” corroborating evidence as the “attributes of

possession (time, place and manner), opportunity to commit

the crime, and defendant’s conduct.” This allowed the jury

to infer that Hall committed the murder based on the “time,

place, and manner” of his possession; in other words, the jury

may have been encouraged to infer that Hall committed the

murder based on the mere fact that he was in possession of

the ring and a passenger in the Audi in the days after the

murder. As already discussed, such an inference is illogical

and improper. Because Hixon’s testimony was unbelievable

and because of the lack of other evidence linking Hall to the

murder, we have grave doubts about whether the jury would

have found Hall guilty beyond a reasonable doubt without the

unconstitutional permissive instruction.11

11 This court previously drew this conclusion in the case of Hall’s codefendant, Sherrors. See Sherrors v. Woodford, 425 F. App’x 617 (9th

Cir. 2011). Though Sherrors is an unpublished memorandum disposition

that is not binding on us, it is quite persuasive because the analysis arose

from the very same trial. In fact, the State concedes that it assumed that

our decision in Sherrors would be binding and that “if it were not for

Johnson v. Williams, the State may not have taken this appeal.” We

disagree that Johnson changes the result in this case.

In Johnson, the Supreme Court held that when a state court addresses

some, but not all, of a defendant’s claims, the federal court on habeas

reviewmust presume, subject to rebuttal, that the unaddressed claims were

adjudicated on the merits, thereby warranting AEDPA deference. 133 S.

Ct 1088, 1091 (2013). Our decision in Sherrors was consistent with this. 

In Sherrors, we applied AEDPA deference and concluded that the
HALL V. HAWS 31

CONCLUSION 

We conclude that Hall’s Rule 60(b) motion was not

inconsistent with AEDPA’s bar on second or successive

petitions, AEDPA’s statute of limitations, or AEDPA’s

exhaustion requirement. The district court did not err in

reviewing Hall’s Rule 60(b) motion and it did not abuse its

discretion in reopening Hall’s case under Rule 60(b)(6). 

Further, we conclude that habeas relief is warranted. 

Therefore, we AFFIRM the district court’s order granting

Hall’s motion to reopen under Rule 60(b) and we AFFIRM

the district court’s order that conditionally granted the First

Amended Petition for Writ of Habeas Corpus unless the State

grants Petitioner a new trial within 90 days from the date of

this opinion.

AFFIRMED.

California Court of Appeal unreasonably applied established Supreme

Court precedent when it “failed to recognized that the instructional error

was of constitutional magnitude.” Sherrors, 425 F. App’x at 619. The

State misinterprets the intent of this sentence. We were notsaying that the

California Court of Appeal failed to address the instructional error claim. 

We were saying that its failure to find a constitutional violation was

unreasonable. And we say the same here.
32 HALL V. HAWS

CALLAHAN, Circuit Judge, dissenting:

I agree with the majority that this case is “rare and

extraordinary for the reasons it cites. What is extraordinary is

that this court repeats the error of Sherrors v. Woodford,

425 F. App’x 617 (9th Cir. 2011), which granted the habeas

petition of Hall’s co-defendant Ronnie Sherrors based on the

same supposed instructional error, even in the face of

additional facts demonstrating that Sherrors was wrongly

decided. Sherrors was retried without the suspect instruction

and, unsurprisingly, was again convicted of first degree

murder and sentenced to life imprisonment without the

possibility of parole. People v. Sherrors, 2014 WL 6907990,

at *1 (Cal. Ct. App. Dec. 9, 2014). In granting Hall’s

petition, the court not only ignores this reality, but invents an

error of constitutional magnitude where none exists. To be

sure, the instructional error Hall claims is an error of state law

only. In finding a due process violation warranting habeas

relief, the majority brushes aside the AEDPA standards and

the Supreme Court’s repeated instructions that we must defer

to reasonable state court decisions. See, e.g., Davis v. Ayala,

135 S. Ct. 2187, 2199, reh’g denied, 136 S. Ct. 14 (2015).

The weighty evidence against Hall only underscores the

extent to which the majority contrives to reach its result.

Nor is Hall deserving of relief under Rule 60(b). Hall

knowingly caused his own petition to be dismissed, and, of

his own accord, failed to take any action on that dismissed

federal habeas petition for three years. Indeed, he waited

until after Sherrors procured habeas relief before seeking

leave to reopen his own case. The state explained at oral

argument that, because Hall had clearly abandoned his own

efforts to pursue habeas relief, he was not retried with

Sherrors. Reopening his case impermissibly rewards his
HALL V. HAWS 33

inaction and gamesmanship, and unfairly imposes the cost of

his retrial on the state.

I therefore respectfully dissent.

I

Hall and Sherrors stole a car that Steve Foth was driving.

They forced Foth into the trunk of the car and drove out to a

dark street. There, accompanied by Lena Hixon, they pulled

Foth out of the trunk and began stabbing him. Foth sustained

approximately eighty-three stab wounds and bled to death.

Hall and Sherrors stripped Foth’s body naked, discarded it in

some bushes, and drove away.

Hall and Sherrors were tried and convicted in state court

of first degree murder while using a deadly weapon, and with

the special circumstance of murder during the course of a

robbery. At trial, the jury was instructed with CALJIC No.

2.15, which states:

If you find that a defendant was in possession

of recently stolen property, the fact of that

possession is not by itself sufficient to prove

an inference that the defendant is guilty of the

crime of murder. Before guilt may be inferred,

there must be corroborating evidence tending

to prove a defendant’s guilt. However, this

corroborating evidence need only be slight

and need not by itself be sufficient to warrant

an inference of guilt.
34 HALL V. HAWS

As corroboration, you may consider the

attributes of possession—time, place and

manner; that the defendant had an opportunity

to commit the crime charged; the defendant’s

conduct; his false or contradictory statements,

if any; and any other statements that may have

been made with reference to the property.

Each defendant received a sentence of life without the

possibility of parole, plus one year.

Hall appealed the judgment to the California Court of

Appeal, which affirmed the judgment in an unpublished

decision. The Court of Appeal assessed whether it was error

to have instructed the jury pursuant to CALJIC No. 2.15, but

assessed this error under the harmless error test of People v.

Watson, 46 Cal. 2d 818 (1956), California’s state-law

harmless error standard, rather than the constitutional

harmless error test of Chapman v. California, 386 U.S. 18

(1967). The Court of Appeal concluded that it was an error of

state law, but that error was harmless. The opinion did not

touch on Hall’s federal due process claim. Hall then filed a

petition for review in the California Supreme Court, arguing

that the Court of Appeal erred by applying Watson rather than

Chapman. The California Supreme Court summarily denied

the petition.

In 2005, Hall filed a Petition for Writ of Habeas Corpus

in the district court pursuant to 28 U.S.C. § 2254, challenging

his conviction. He then filed a First Amended Petition which

raised not only his claim related to CALJIC No. 2.15, but also

an additional claim related to a different jury instruction,

CALJIC No. 8.81.17. When the state moved to dismiss the

petition on the ground that the claim related to CALJIC No.
HALL V. HAWS 35

8.81.17 was unexhausted, Hall requested that the district

court stay his case so that he could present his unexhausted

claim to the state courts. This request was denied. The district

court advised Hall that he could either “voluntarily dismiss

his entire federal petition and return to state court to exhaust

his unexhausted claims,” or “formally abandon his

unexhausted claim and proceed with his exhausted claims.”

Hall was explicitly informed by the district court that if he

chose to proceed with his exhausted claims, “he must file a

pleading entitled ‘Formal Abandonment of Unexhausted

Claim’ with this Court no later than 30 days after the District

Judge issues his decision.” The district court informed Hall

that he was “presented with the options stated above to avoid

dismissal of his petition.” Hall requested an extension of

time to file a formal abandonment of his unexhausted claim,

which was granted. But Hall never submitted a notice of

formal abandonment or any other filing in response to the

district court’s order. Hall’s mixed petition was therefore

dismissed without prejudice and the case was terminated.

Hall’s co-defendant Sherrors also filed a Petition for Writ

of Habeas Corpus in 2005, challenging his own conviction. 

In May 2007, well after the dismissal of Hall’s petition, the

district court conditionally granted the writ, and the state

appealed that decision. It was not until almost two years

later—and over three years after the district court’s dismissal

of Hall’s petition—that Hall filed a “Motion to Join Case of

Co-Defendant” in the district court. The district court treated

this filing as a motion to reopen Hall’s original habeas

petition. The district court deemed “consideration of the

matter” premature while the decision granting Sherrors’s

petition was on appeal, and denied the motion “without

prejudice to refile the motion once the Court of Appeals for

the Ninth Circuit issues a final decision in Sherrors’s habeas
36 HALL V. HAWS

case.” When the Ninth Circuit affirmed the district court’s

decision to grant Sherrors’s petition in 2011, Sherrors, 425 F.

App’x 617; see also id. at *3 (Callahan, J., dissenting), Hall

filed a “Motion to Join Case of Co-Defendant; Motion to ReOpen Case of Hall v. B. Cash” in the district court, seeking

relief under Rule 60. The state opposed the motion,

contending that Hall should be required to file a new petition.

Hall, at that point proceeding pro se, filed a reply indicating

that he would file a new petition. The court appointed counsel

to represent Hall, and directed that Hall file a supplemental

Motion to Re-Open Under Rule 60(b). Hall, through counsel,

then filed a supplemental motion seeking relief under Rule

60(b)(6). The district court afforded Hall relief under Rule

60(b)(6), and found that habeas relief was warranted. The

state appealed.

II

Rule 60(b)(6) entitles the moving party to relief from

judgment for “any other reason that justifies relief” and a

motion invoking this rule must be filed “within a reasonable

time . . . after the entry of the judgment.” Fed. R. Civ. P.

60(b)(6), (c)(1). Our precedent is clear that “[w]e use Rule

60(b)(6) ‘sparingly as an equitable remedy to prevent

manifest injustice.’” Lal v. California, 610 F.3d 518, 524

(9th Cir. 2010) (emphasis added) (quoting United States v.

Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th Cir.

1993)). The Supreme Court has held, and we have recently

reiterated, that “[t]o justify relief under Rule 60(b)(6), a party

must show external ‘extraordinarycircumstances’ suggesting

that the party is faultless in the delay.” Washington v. Ryan,

833 F.3d 1087, 1099 (9th Cir. 2016) (en banc) (quoting
HALL V. HAWS 37

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship,

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

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

Hall does not come close to showing a “good reason for

failing to take the action sooner,” United States v. Holtzman,

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

the delay,” Washington, 833 F.3d at 1099. Quite to the

contrary, the record indicates that the fault lies with him

alone. The majority’s characterization of this case as

involving a “perfect storm” which “produced a situation in

which Hall would have been subject to ‘manifest injustice’ if

not for Rule 60(b)(6),” Op. at 19, is beyond generous; it is

inventive. It was not outside forces, but Hall’s own conduct

(or lack thereof), that “produced” this situation. Hall failed

to notify the district court in 2006 of how he wished to

proceed despite receiving notice that his petition would be

dismissed if he did not affirmatively select one of the two

options presented to him. Sherrors allegedly continued to

advise Hall that he was filing “writs and motions” with Hall’s

name included as a “co-submission.” Hall also asserts that he

had a “good faith reason to believe his interests were included

in any outcome of [Sherrors’s case].” But nothing in the

record indicates that Hall held this belief at the time he failed

to file a formal abandonment or otherwise take action on his

own petition. And although both the district court and the

majority accept Hall’s assertion that Sherrors’s habeas 

petition was originally submitted to the district court on

behalf of both Hall and Sherrors, reference to Sherrors’s

habeas petition reveals no such co-submission. See Case No.

3:05-cv-01262-IEG-LSP, District Court Docket No. 1. What

is more, Hall waited over three years to take action to join

Sherrors’s case.
38 HALL V. HAWS

Granting Rule 60(b)(6) relief under these circumstances

not only contradicts our Rule 60 jurisprudence but blithely

accepts Hall’s excuses for his inaction. Indeed, the conclusion

that these facts “are the reason for Hall’s failure to comply

with the district court’s January 25, 2006 order” finds no

support in the record. Op. at 19. Hall alone bears the

responsibility for the dismissal of his case and his three-year

delay in seeking to reopen it. These facts compel me to

conclude that the district court abused its discretion in finding

“extraordinary circumstances” warranting relief under Rule

60(b)(6).

III

The majority compounds its mistake by finding an error

of constitutional magnitude where none exists. “The Due

Process Clause of the Fourteenth Amendment ‘protects the

accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the

crime with which he is charged.’” Francis v. Franklin,

471 U.S. 307, 313 (1985) (quoting In re Winship, 397 U.S.

358, 364 (1970)). This principle “prohibits the [s]tate from

using evidentiary presumptions in a jury charge that have the

effect of relieving the [s]tate of its burden of persuasion

beyond a reasonable doubt of every essential element of a

crime.” Id. (citations omitted). “A permissive inference

instruction allows, but does not require, a jury to infer a

specified conclusion if the government proves certain

predicate facts. Although such an instruction does not shift

the burden of proof, it violates due process ‘if the suggested

conclusion is not one that reason and common sense justify

in light of the proven facts before the jury.’” United States v.

Warren, 25 F.3d 890, 897 (9th Cir. 1994) (quoting Francis, 

471 U.S. at 314–15). An instructional error rises to the level
HALL V. HAWS 39

of a constitutional violation if “the ailing instruction by itself

so infected the entire trial that the resulting conviction

violates due process.” Estelle v. McGuire, 502 U.S. 62, 72 

(1991) (citations omitted).

Here, the California Court of Appeal addressed the merits

of Hall’s instructional-error claim only as an error of state

law, and found that any error was harmless under Watson,

46 Cal. 2d 818. The California Court of Appeal did not

expressly address Hall’s claim that this instructional error

violated his due process rights. Hall then petitioned to the

California Supreme Court, claiming that the Court of Appeal

erred in applying Watson, 46 Cal. 2d 818, rather than

Chapman, 386 U.S. at 24. The California Supreme Court

summarily denied Hall’s petition.

“When a state court rejects a federal claim without

expressly addressing that claim, a federal habeas court must

presume that the federal claim was adjudicated on the merits

. . . .’” Johnson v. Williams, 568 U.S. 289, 133 S. Ct. 1088,

1096 (2013). Here, we may assume that Hall’s due process

claim was adjudicated on the merits, although neither the

California Court of Appeal nor the California Supreme Court

expressly addressed it. The Supreme Court has directed that

Harrington v. Richter, 562 U.S. 86 (2011), governs our

analysis in this circumstance. Williams, 133 S. Ct. at 1096.

Thus, “[u]nder § 2254(d),” we “must determine what

arguments or theories . . . could have supported . . . the state

court’s decision; and then . . . must ask whether it is possible

fairminded jurists could disagree that those arguments or
40 HALL V. HAWS

theories are inconsistent with the holding in a prior decision

of this Court.”1 Harrington, 562 U.S. at 102 (emphasis

added).

Hall does not come close to satisfying this standard. The

Court of Appeal could have determined that the permissive

inference instruction given at Hall’s trial did not so infect the

entire trial that his conviction violates due process, and 

fairminded jurists could disagree about the correctness of this

determination. In reaching the opposite conclusion, the

majority “collaps[es] the distinction between ‘an

unreasonable application of federal law’ and what [the

majority] believes to be ‘an incorrect or erroneous

application of federal law.’” Nevada v. Jackson, 133 S. Ct.

1

 The majority contends that Harrington does not apply because the

Court of Appeal’s analysis under the Watson standard indicates that it

determined that there was no constitutional error. The majority further

contends that the court’s citation to People v. Barker, 91 Cal. App. 4th

1166 (2001), provides sufficient “insight into the state court’s reasoning

for rejecting Hall’s constitutional claim.” Op. at 26 n.10. But the citation

to Barker tells us nothing about the Court of Appeal’s reasons for denying

the federal claim, since Barker finds that giving CALJIC No. 2.15

implicates a defendant’s federal due process rights, 91 Cal. App. 4th at

1174–76 (assessing error under Chapman standard), while Prieto

implicitly rejects that conclusion, 30 Cal. 4th at 249. Accordingly, we

cannot treat this citation as a “reasoned” decision on Hall’s due process

claim. Cf. Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016).

Moreover, the majority’s analysis contradicts the clear holding of

Williams, 133 S. Ct. at 1096. In Williams, the Supreme Court instructed

that where, as here, a state court considers a petitioner’s federal claim but

does not “expressly acknowledge” it, the reviewing federal court must

assess the state court’s decision under Harrington. Williams, 133 S. Ct.

at 1093, 1096. This is true even if the state court cites to the controlling

federal standard, or cites cases which reference federal law. Id. at 1093,

1098–99.
HALL V. HAWS 41

1990, 1994 (2013) (emphasis in original) (quoting Williams

v. Taylor, 529 U.S. 362, 412 (2000)).

People v. Prieto, 30 Cal. 4th 226 (2003), does not support

the conclusion that giving CALJIC No. 2.15 violated Hall’s

due process rights. Instead, Prieto found that “application of

CALJIC No. 2.15 to nontheft offenses like rape and murder”

is improper under California state law. Id. at 248. The Prieto

court explained that the instruction was an error under state

law because “‘proof a defendant was in conscious possession

of recently stolen property simply does not lead naturally and

logically to the conclusion the defendant committed’ a rape

or murder.” Id. at 249 (emphasis added) (quoting People v.

Barker, 91 Cal. App. 4th 1166, 1176 (2001)).2 By contrast, a

permissive inference instruction “is constitutional so long as

the inference would not be irrational.” Yates v. Evatt,

500 U.S. 391, 402 n.7 (1991) (emphasis added) (citing

2 Prieto’s citation to Barker is revealing, but not for the reasons given

by the majority. See Op. at 25. Indeed, the Prieto court appears to have

considered, and rejected, Barker’s conclusion that instructing the jurywith

CALJIC No. 2.15 on a murder charge implicates a defendant’s due

process rights. 30 Cal. 4th at 248–49. Prieto also rejected the argument

that CALJIC No. 2.15 violated due process by creating a mandatory

inference, as it found that “nothing in the instruction absolved the

prosecution ofits burden of establishing guilt beyond a reasonable doubt.” 

30 Cal. 4th at 248; see generally Sandstrom v. Montana, 442 U.S. 510,

521–24 (1979). The court looked to the jury instruction requiring that the

prosecution prove the elements of the offense beyond a reasonable doubt,

and stated that the trial court gave “other instructions properly

instruct[ing] the jury on its duty to weigh the evidence, what evidence it

may consider, how to weigh that evidence, and the burden of proof” such

that “there is ‘no possibility’ that [the instruction] reduced the

prosecution’s burden of proof in this case.” 30 Cal. 4th at 248. This

discussion further evidences that the Prieto court considered, and

rejected, the proposition that giving CALJIC No. 2.15 is an error of

constitutional significance.
42 HALL V. HAWS

Francis, 471 U.S. at 314–15). An inference may be “rational”

without “flowing naturally and logically,” and the

constitutional error standard thus presents a lower hurdle for

an instruction to clear.

The California Supreme Court reached this same

conclusion when it considered whether CALJIC No. 2.15

created an improper permissive inference in violation of a

defendant’s due process rights. People v. Moore, 51 Cal. 4th

1104, 1132 (2011). The Moore court explained: “Although

we concluded in Prieto that the connection between a

defendant’s guilt of nontheft offenses and his or her 

possession of property stolen in the crime is not sufficiently

strong to warrant application of the slight corroboration rule,

this does not mean that drawing a connection between

possession and guilt is irrational.” Id. (emphasis added). The 

court stated that it “[could not say], therefore, that it would

have been irrational for the jury . . . to draw an inference of

defendant’s guilt of the . . . murders from his possessing their

property soon after the murders when there was other slight

corroboration of guilt, especially when it is likely the same

person or persons who killed the victims also took their

belongings.” Id. (emphasis in original) (citation omitted).

This reasoning, although not binding on this court, is

logically sound, and supports a finding that the state court

could have reasonably determined that giving the jury

CALJIC No. 2.15 was not a constitutional error, and that

fairminded jurists could disagree with the correctness of this

result.

The majority concludes the opposite, and finds that the

jury instruction violated Hall’s due process rights. Op. at

24–26. The majority finds not only that the state court erred

in concluding that this error was one of state law only, but
HALL V. HAWS 43

that this decision was objectively unreasonable. Op. at 26. In

doing so, the majority repeats the error that we are so often

criticized for, and “treat[s] the unreasonableness question as

a test of its confidence in the result it would reach under de

novo review . . . .” Harrington, 562 U.S. at 102.

The majority’s conclusion further ignores that we

“determine the constitutionality of a permissive inference

instruction on a case-by-case basis,” in the context of the trial

at issue. United States v. Warren, 25 F.3d 890, 898 (9th Cir.

1994) (citing Ulster County v. Allen, 442 U.S. 140, 162–67

(1979)). Reviewing the record evidence makes clear that it is

rational to infer, from the evidence that Hall had Foth’s

property in the days following Foth’s murder and the other

corroborating evidence presented at trial, including Hixon’s

detailed testimony, that Hall killed Foth. This inference is

“one that reason and common sense justify in light of the

proven facts before the jury,” and thus there was no

constitutional violation. Francis, 471 U.S. at 315.

Accordingly, the state court did not err, let alone

unreasonably apply clearly established federal law, in

rejecting Hall’s claim that instructing the jury with CALJIC

No. 2.15 was a constitutional error. To the contrary, giving

the jury this instruction was an error of state law only.

IV

Even assuming that instructing the jury with CALJIC No.

2.15 was not simply an error of state law, but was an error of

constitutional magnitude, Hall is still not entitled to relief

because any error was harmless.
44 HALL V. HAWS

Establishing that giving the jury CALJIC No. 2.15

violated his due process rights requires Hall to show both that

the instruction’s “suggested conclusion [was] not one that

reason and common sense justif[ied] in light of the proven

facts,” Warren, 25 F.3d at 897, and that giving the instruction

was not harmless beyond a reasonable doubt, see, e.g.,

Chapman, 386 U.S. at 24. Just as the state court’s denial of

Hall’s federal claim could have been supported by the theory

that giving CALJIC No. 2.15 was not a constitutional error,

it also could have been supported by the theory that any

constitutional error was harmless beyond a reasonable doubt.3

And, as the Supreme Court made clear in Ayala, when a state

court determines that an error was harmless beyond a

reasonable doubt, that determination is entitled to AEDPA

deference. 135 S. Ct. at 2199. We must therefore ask

“whether it is possible fairminded jurists could disagree” with

the correctness of the state court’s denial of Hall’s federal

claim on the theory that any error was harmless beyond a

reasonable doubt. Harrington, 562 U.S. at 102.

Of course, because this is a collateral proceeding, we

must apply not only the AEDPA/Chapman standard of

review, but also the standard set forth by Brecht v.

Abrahamson, 507 U.S. 619 (1993), which requires a

petitioner to establish “actual prejudice.” Id. at 637. When

assessing a state court’s harmlessness determination under

3 Again, although the California Court of Appeal assessed

harmlessness, it did so under the Watson standard, and addressed only

whether the error was one of state law. The California Supreme Court

issued a summary denial of Hall’s federal claim. As explained above,

when a state court’s determination of a federal claim is unaccompanied by

a reasoned decision, we “must determine what arguments or theories . . .

could have supported . . . the state court’s decision . . . .” Harrington, 

562 U.S. at 102 (emphasis added); Williams, 133 S. Ct. at 1096.
HALL V. HAWS 45

this test, “relief is proper only if the federal court has ‘grave

doubt about whether a trial error of federal law had

substantial and injurious effect or influence in determining

the jury’s verdict.’” Ayala, 135 S. Ct. at 2197–98 (quoting

O’Neal v. McAninch, 513 U.S. 432, 436 (1995)). “There must

be more than a ‘reasonable possibility’ that the error was

harmful.” Id. at 2198 (quoting Brecht, 507 U.S. at 637). This

standard “reflects the view that a ‘State is not to be put to

th[e] arduous task [of retrying a defendant] based on mere

speculation that the defendant was prejudiced by trial error;

the court must find that the defendant was actually prejudiced

by the error.’” Id. (quoting Calderon v. Coleman, 525 U.S.

141, 146 (1998)). Importantly, as the Supreme Court

cautioned us in Ayala, the Brecht standard does not

“somehow abrogate[] the limitation on federal habeas relief

that § 2254(d) plainly sets out.” Id. While we “need not

‘formally’ apply both Brecht and AEDPA/Chapman,’

AEDPA . . . ‘sets forth a precondition to the grant of habeas

relief.’” Id. (quoting Fry v. Pliler, 551 U.S. 112, 119–20

(2007)). Thus, it is not enough to find actual prejudice under

the Brecht standard; the Chapman/AEDPA standard must

also be met, and we must therefore accept a state court’s prior

harmless error determination unless it involved such an 

“unreasonable” application of Supreme Court precedent that

“no fairminded jurist” could agree with it. Ayala, 135 S. Ct.

at 2199.

The majority applies the wrong standard, and in doing so,

fails to afford the state court the deference it is due. The

majority’s error here is threefold. It first ignores Harrington

and Williams, and fails to ask what arguments could have

supported the state court’s decision. It then repeats the error

of Deck v. Jenkins, 814 F.3d 954 (9th Cir. 2016), and states

that it need not review the state court’s decision for
46 HALL V. HAWS

reasonableness under Chapman because “[a] determination

that the error resulted in ‘actual prejudice’ [under Brecht]

necessarily means that the state court’s harmless error

determination was not merely incorrect, but objectively

unreasonable,” Op. at 27. Cf. Deck, 814 F.3d at 959–60 (Bea,

J., dissenting from denial of reh’g en banc). And finally,

hedging its bets, the majority purports to engage in an

assessment of harmless error under Chapman, but concludes

that because the California Court of Appeal reviewed the

alleged error under Watson rather than Chapman, its

harmlessness determination was objectively unreasonable.

Op. at 28. Then, having dismissed the state court’s

harmlessness determination, the majority engages in a de

novo review under Brecht to conclude that the supposed

instructional error resulted in actual prejudice to Hall. Op. at

28–30. This circular logic fails to afford the proper deference

to the theory of harmlessness that reasonably supported the

state court’s denial of Hall’s federal claim.

Indeed, the overwhelming evidence presented at trial that

Hall murdered Foth underscores that it would have been

entirely reasonable for the state court to reject Hall’s federal

claim on the basis that the error was harmless. Lena Hixon 

testified in detail about the manner in which Hall and

Sherrors committed the murder, and her testimony was

corroborated by, and consistent with, other evidence

presented at trial. The prosecution also admitted evidence that

Hixon told a fellow inmate that she had held Foth down as

Sherrors and Hall stabbed him, and that the three of them—

Hixon, Sherrors, and Hall—had robbed Foth and killed him,

leaving him naked in the bushes. The prosecution introduced

evidence corroborating and supportingHixon’s account of the

murder. Foth’s body was found naked. An autopsy report

revealed that Foth sustained eighty-three stab wounds. When
HALL V. HAWS 47

police arrested Sherrors and Hall, they found Foth’s class ring

in a pair of Hall’s pants. Sherrors and Hall kept Foth’s car for

several days, claiming it belonged to Hixon’s mother. The

burned and destroyed car was found near Hall and Sherrors’s

apartment the day after the two men saw a news report

describing the car. Someone unsuccessfully attempted to use

Foth’s ATM card at 8:56 PM the night of the murder, and

someone used a cell phone in Foth’s possession to call a

pager owned by Hixon’s boyfriend, Michael Washington.

When Hall and Sherrors were arrested and searched, the

police found Washington’s pager number in Sherrors’s

pocket. Each of these pieces of evidence provides

corroboration for Hixon’s testimony.

Hixon’s testimony also accounts for specific details of

Foth’s murder. For example, responding officers found a

number of items at the scene, including a broken fingernail

and a watch. Hixon testified that when Hall and Sherrors 

initially let Foth out of the trunk of the car, Sherrors had

grabbed her hands, breaking two of her acrylic fingernails.

She also testified that after the murder, Sherrors mentioned

dropping his watch at the scene. Evidence showed that

Foth’s ATM card was unsuccessfully used that night; Hixon

testified that, following the murder, the trio attempted to use

Foth’s ATM card at a convenience store.

Moreover, while the California Court of Appeal applied

only the Watson harmless-error standard in assessing the

instruction’s prejudicial effect, its sound reasoning provides

further support for concluding that the denial of Hall’s federal

claim was reasonable. The California Court of Appeal asked

“whether the error [was] prejudicial, i.e., whether it is
48 HALL V. HAWS

reasonably likely the jury would have reached a different

result if the court had not given the instruction.” The court

held:

We answer this question in the negative.

CALJIC No. 2.15 specifically instructed the

jurors that they could not infer guilt of murder

from the defendants’ possession of recently

stolen property absent corroborating evidence

of guilt. The inference of guilt addressed in

CALJIC No. 2.15 is permissive, not

mandatory, and thus the jury was entitled to

credit, or reject, the inference based on its

evaluation of the evidence.

It further observed that the jurors were instructed that they

needed to find the elements of each crime, and the special

circumstances, beyond a reasonable doubt. Most importantly,

the court determined that because the jury found true the

special circumstance that the defendants committed the

murder during the commission of a robbery, it was clear that

the jury had “accepted the substance of Hixon’s testimony

regarding the defendants’ involvement in the incident,” and,

“[b]ased on Hixon’s testimony, there is no reasonable

likelihood that [the jury] would have rendered a verdict more

favorable to the defendants had the court omitted this

instruction.”

By contrast, the majority walks through what it deems to

be the flaws in Hixon’s testimony, stating that it is “nearly

impossible to believe” her account “of the timeline of

events,” that she “lied about using and possessing Foth’s

property,” that she “downplayed her own involvement in the

crimes,” and that she “lied or changed her story regarding
HALL V. HAWS 49

several other details of the night.” Op. at 28–29. Adding up

these invented shortcomings, the majority concludes that the

jury “could have disbelieved Hixon,” and “may have been

encouraged to infer that Hall committed the murder based on

the mere fact that he was in possession of the ring and the

Audi in the days after the murder.” Op. at 29–30. These

speculations do not show that the theory of harmlessness that

may have supported the state court’s rejection of Hall’s due

process claim was unreasonable. See Ayala, 135 S. Ct. at

2198–99. Indeed, the majority’s musings overlook that the

jury was presented with the flaws in Hixon’s testimony and

chose to believe her not only when they convicted Sherrors

and Hall the first time, but again when they convicted

Sherrors at his retrial.

The fact that Sherrors was retried without the erroneous

instruction and was again convicted of first degree murder

only confirms that any error in giving CALJIC No. 2.15 was

harmless. At Sherrors’s retrial, the jury again found true that

he committed the crime during the commission of a robbery,

and he was again sentenced to life in prison without the

possibility of parole. People v. Sherrors, 2014 WL 6907990,

at *1 (Cal. Ct. App. Dec. 9, 2014). We therefore need not

wonder what might have happened if Hall was tried without

the erroneous instruction. Sherrors’s reconviction affirms that

the state court’s rejection of Hall’s due process claim was an

entirely reasonable application of controlling precedent, and

that any error in giving the jury CALJIC No. 2.15 in Hall’s

trial did not have a “substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht, 507 U.S.

at 637.
50 HALL V. HAWS

V

Hall’s years-long inaction precludes him from

demonstrating the type of extraordinary circumstances

required for relief under Rule 60(b)(6). And, even assuming

that such relief were warranted, Hall has not shown that the

permissive inference created by CALJIC No. 2.15 violated

his due process rights. Finally, even accepting that

instructing the jury with CALJIC No. 2.15 amounted to a

constitutional error, the instruction did not actually prejudice

Hall. These serious errors will result in California having to

retry a defendant who is undoubtedly guilty of the murder he

committed.

It bears repeating that “[a]s a condition for obtaining

habeas corpus from a federal court, a state prisoner must

show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.”

Harrington, 562 U.S. at 103. That standard is not met here.

The majority’s decision to the contrary disregards not only

binding precedents, but the Supreme Court’s numerous

admonitions to this circuit that it adhere to AEDPA’s

stringent standards.

I therefore respectfully dissent.