No Review of Stepfather’s Overturned Convictions

The full 9th Circuit declined Tuesday to rehear a panel decision overturning the convictions of a man accused of molesting his stepdaughter, though dissenting judges said the ruling "casts common sense aside."

In February, a three-judge panel in Pasadena, Calif., upheld a federal judge's decision granting habeas relief to Earl Eugene Cannedy, Jr.

Cannedy had been convicted of molesting his teenage stepdaughter and trying to stop her from reporting the abuse.

He argued on appeal that his lawyer failed to present key testimony that would have bolstered the stepdaughter's motive for fabricating the allegations. One of her former friends was allegedly prepared to testify that the stepdaughter had posted an "away" message on AOL Instant Messager saying she "made up the claims of molestation ... because she wanted to move to her natural father's home in Northern California where she was more happy and had more friends."

Cannedy lost his bid for a new trial, and a California appeals court denied his habeas petition, saying the evidence did not support Cannedy's claim of ineffective assistance.

The California Supreme Court summarily denied his petition without issuing a separate opinion.

When Cannedy turned to the federal system, he was granted relief by U.S. District Judge Cormac Carney.

The 9th Circuit panel affirmed, saying the state appeals court's analysis was "unreasonable" in light of the new evidence Cannedy presented to the California Supreme Court.

The full court on Tuesday opted not to rehear the case.

But Judge Diarmuid O'Scannlain, dissenting from Tuesday's order, said the panel majority was wrong to "look through" the California Supreme Court's summary decision to the "last reasoned state court opinion."

O'Scannlain cited four U.S. Supreme Court decisions that he said "yield four principles that should guide the federal courts as we interpret a state court's wholly or partially unexplained decision on habeas review."

Those guiding principles, according to O'Scannlain, are: 1) "use common sense"; 2) "do not declare a state court's analysis unreasonable based on evidence not before it"; "respect judicial comity"; and 4) "give state courts the benefit of the doubt."

"Had the majority fairly applied them, it would have found a different course appropriate," O'Scannlain wrote. "Specifically, it would have seen the California Supreme Court's silent denial of Cannedy's habeas petition for what it was: an indication that the court found it unnecessary to explain why his petition lacked merit, not an indication that it intended to adopt the then-outdated reasoning of the California Court of Appeal." (Original emphasis.)

He later added: "If the majority had asked the correct question -- whether any argument or theory could have supported the state court's summary denial of Cannedy's ineffective assistance claim -- it would have found habeas relief unwarranted."

Joining him in dissent were Judges Richard Tallman, Jay Bybee, Consuelo Callahan, Carlos Bea and Sandra Ikuta.

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