John Atlas, Jr. v. Eric Arnold

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 5 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN ATLAS, Jr., No. 20-55452

Petitioner-Appellant, D.C. No.
5:15-cv-01504-RSWL-RAO
v.

ERIC ARNOLD, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding

Argued and Submitted July 7, 2021
Pasadena, California

Before: D.M. FISHER,** WATFORD, and BUMATAY, Circuit Judges.
Dissent by Judge WATFORD

Petitioner John Atlas, Jr., was convicted in California state court of dissuading

witnesses by force or fear. The conviction stemmed from an incident in which Atlas

made threatening remarks to a couple while Atlas’s acquaintance was arrested for

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
stealing their car. At trial, Atlas testified that he had been diagnosed with

schizophrenia and prescribed medication, which he had failed to take the night

before the incident.

On direct appeal from his conviction, Atlas argued that trial counsel was

ineffective under Strickland v. Washington, 466 U.S. 668 (1984), because he failed

to call Atlas’s psychiatrist as a witness to testify about his mental illness. The

California Court of Appeal rejected his claim, holding that Atlas failed to show any

deficient representation prejudiced him. The California Supreme Court summarily

denied his petition for review.

Thereafter, Atlas sought habeas relief under 28 U.S.C. § 2254 in federal

district court, which stayed proceedings while Atlas exhausted state habeas

remedies. He then filed a habeas petition in the California Superior Court, which

denied his petition for two reasons: (1) the petition was not verified, and (2) relief

was barred under In re Waltreus, 62 Cal. 2d 218 (1965). Under the Waltreus rule,

“claims that have been raised and rejected on direct appeal” cannot support state

habeas relief. In re Scoggins, 9 Cal. 5th 667, 673 (2020). Finally, Atlas filed a

separate, verified petition in the California Supreme Court, which summarily denied

relief. The district court then denied relief, and Atlas appealed. We review de novo,

Lambert v. Blodgett, 393 F.3d 943, 964–65 (9th Cir. 2004), and affirm.

In considering a habeas petition under § 2254, the first issue is whether we

2
owe AEDPA deference under § 2254(d) and, if so, to which decision deference

applies. We start with the California Supreme Court’s denial of state habeas relief,

as the last relevant state court decision. Fox v. Johnson, 832 F.3d 978, 985–86 (9th

Cir. 2016). Because it is an unreasoned decision, there is a presumption that the

court adopted the last relevant reasoned state-court decision. Id. This “look-

through” presumption, however, may be rebutted by “strong evidence.” Sandgathe

v. Maass, 314 F.3d 371, 377 (9th Cir. 2002).

Here, the last reasoned decision is the California Superior Court’s denial of

state habeas relief. But strong evidence rebuts the presumption that the California

Supreme Court adopted the Superior Court’s decision. See Ylst v. Nunnemaker, 501

U.S. 797, 802 (1991) (holding that “the nature of the disposition” and “surrounding

circumstances” may inform the reasoning behind a state court’s silent denial of

relief). The Superior Court’s first ground for denial—that the petition there was not

verified—is clearly inapplicable to the decision in the California Supreme Court,

where the petition was undisputedly verified.

The California Supreme Court also did not adopt the Superior Court’s

Waltreus ground for denial of relief. First, Waltreus does not apply to claims of

ineffective assistance of trial counsel. In re Robbins, 18 Cal. 4th 770, 814 n.34

(1998). And we apply a “presumption that the state court knew and followed the

law.” Lopez v. Schriro, 491 F.3d 1029, 1037 (9th Cir. 2007). It is implausible that

3
the court unreasonably applied California law. Second, the state’s briefing in the

California Supreme Court did not even advance the Waltreus argument, unlike its

briefing in the Superior Court. Third, the California Supreme Court granted

California’s motion to judicially notice the conviction of Atlas’s mental-health

expert, suggesting that the Supreme Court considered Atlas’s ineffective assistance

claim on the merits since the conviction only pertained to merits consideration.

Finally, the California Supreme Court “denied” the petition, rather than “dismissed”

it. See Ylst, 501 U.S. at 802 (noting that dismissal indicates a procedural decision,

whereas a denial indicates a decision on the merits). This evidence rebuts the look-

through presumption. We therefore presume that the California Supreme Court’s

denial was a decision on the merits. See Harrington v. Richter, 562 U.S. 86, 99

(2011).

Given the rebuttal of the look-through presumption, we now look to “the last

related state-court decision that . . . provide[s] a relevant rationale” and apply

AEDPA deference to it. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). Because

the Superior Court’s decision here did not decide the ineffective assistance claim on

the merits, see Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996) (“[A] Waltreus

citation is neither a ruling on the merits nor a denial on procedural grounds.”), we

look further back to the Court of Appeal’s decision on direct appeal.

Atlas contends, however, that the Court of Appeal decided a different

4
ineffective assistance claim than the one raised in his habeas petitions. In Atlas’s

view, his current claim was therefore never adjudicated on the merits and should be

subject to de novo review. We disagree. Both on direct appeal and on collateral

review, his claim is that trial counsel failed to sufficiently advance his mental illness

defense to the mens rea element of his charges. This claim was decided in the Court

of Appeal. Even supposing the minor differences between his ineffective assistance

arguments are relevant, Atlas’s habeas petition before the California Supreme Court

raised the precise same issues as he does here and, as explained above, that court’s

decision was on the merits and is thus due deference.

Applying AEDPA deference to the Court of Appeal’s determination that any

deficient performance by Atlas’s counsel did not prejudice him, we conclude that

the decision is not unreasonable under § 2254(d). The court determined that Atlas’s

testimony made the jury “fully aware of his claims of schizophrenia and

medications.” Furthermore, the evidence against him was overwhelming—

including Atlas’s confession that he remembered telling the victims not to go to court

and a credible officer’s testimony as to his other threats—so that stronger evidence

regarding his mental illness would have had no effect. A gang expert also testified

that Atlas was an associate of a gang or its members and that his threatening

statements would serve to raise his standing with the gang. Atlas has not shown that

the Court of Appeal’s conclusion is an unreasonable application of Strickland. See

5
White v. Woodall, 572 U.S. 415, 419 (2014) (Unreasonable applications are

“objectively unreasonable,” not “merely wrong” or even “clear[ly] erro[neous].”

(simplified)).

The dissent would have remanded to the district court for an evidentiary

hearing to develop the facts underlying Atlas’s ineffective assistance claim. A

petitioner is only entitled to an evidentiary hearing in federal district court if he

alleges facts that, if proven, “would entitle the applicant to federal habeas relief.”

Schriro v. Landrigan, 550 U.S. 465, 474 (2007). In undertaking this inquiry, federal

courts must “take into account [AEDPA] standards in deciding whether an

evidentiary hearing is appropriate.” Id. “[I]f the record refutes the applicant’s

factual allegations or otherwise precludes habeas relief, a district court is not

required to hold an evidentiary hearing.” Id. “[A]n evidentiary hearing is not

required on issues that can be resolved by reference to the state court record.’” Id.

(quoting Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998)).

Here, the California Court of Appeal determined that, due to the

overwhelming evidence of Atlas’s guilt, the addition of the expert witness testimony

would only bolster the facts before the jury. We cannot say that this was an

unreasonable determination of the facts under § 2254(d)(2). As the district court

concluded, there was “no reasonable probability that presentation of the proffered

evidence . . . would have raised a reasonable doubt in any juror’s mind as to whether

6
Petitioner had the specific intent to commit the charged offenses,” primarily because

of the sharp contrast between Atlas’s behavior at the time of the incident and his

behavior when he is having an episode of mental illness. When suffering a psychotic

episode, according to the record, Atlas acted in recognizably aberrant and incoherent

ways, such as hitting the walls or his head and stating his fear of demons emerging

out of the toilet. By contrast, at the time of the incident, Atlas waited to obtain his

jacket from the victims’ car, then clearly and specifically threatened the victims,

warning them not to go to court and that he knew where the victims live. There is

no evidence that Atlas was disconnected from reality. The threat was considered so

genuine that an officer accompanied the victims home for their safety and the victims

immediately moved from their home because they were frightened for their family.

It was not unreasonable for the California Court of Appeal to hold there was no

Strickland prejudice and that the result would have been the same even had Atlas’s

attorney presented additional evidence about Atlas’s mental illness.

AFFIRMED.

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 FILED
AUG 5 2021
John Atlas, Jr. v. Eric Arnold, No. 20-55452
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WATFORD, Circuit Judge, dissenting:

I agree with my colleagues that the look-through presumption has been

rebutted and that the California Supreme Court’s summary denial of Atlas’s

ineffective-assistance-of-counsel claim should be treated as a decision on the

merits. “Under California law, the California Supreme Court’s summary denial of

a habeas petition on the merits reflects that court’s determination that the claims

made in the petition do not state a prima facie case entitling the petitioner to

relief.” Cullen v. Pinholster, 563 U.S. 170, 188 n.12 (2011). Thus, the only

question before us is whether Atlas in fact stated a prima facie claim for relief. If

he did, the California Supreme Court’s denial of the claim without holding an

evidentiary hearing would be based on an unreasonable determination of the facts

under 28 U.S.C. § 2254(d)(2). See Nunes v. Mueller, 350 F.3d 1045, 1053–56 (9th

Cir. 2003).

Atlas’s conviction for two counts of dissuading a witness by force or threat

and for the benefit of a criminal street gang stems from a bizarre encounter on

April 2, 2013. That morning, a stolen vehicle was found in the parking lot of a

grocery store. Police arrested Dunell Crawford, who was later identified as a gang

member. Atlas had received a ride from Crawford, an acquaintance of his, and

waited with the police until the car owners arrived so that he could retrieve his
 Page 2 of 10

jacket from the car. When the car owners confirmed that the jacket was not theirs,

police gave the jacket to Atlas and told him to leave. At that point, Atlas began

walking back and forth, yelling, “Don’t go to court,” and “We know you live in

Five Time” gang territory. He also made gunshot noises. All of this occurred in

front of the police, who arrested Atlas as he continued yelling. A search of Atlas’s

person revealed two cigarette lighters, which prompted Atlas to yell that they

would be used to burn the victims’ house down. Atlas’s jacket pocket contained

medication that had been prescribed for his psychiatric condition.

At the time of the offense, Atlas was 43 years old and had no history of gang

activity or membership. Atlas admits that he yelled “Don’t go to court,” but he

does not remember the other threats and cannot otherwise explain his conduct.

Although the victims felt frightened and intimidated, they also testified at trial that

it seemed as though Atlas “was just drunk or something.” According to a

treatment note from the detention center, the day after the offense, while in

custody, Atlas was “angry and hitting walls,” reported having “auditory

hallucinations,” and “appeared to be responding to internal stimuli.”

At trial, the State had to prove beyond a reasonable doubt that Atlas had the

specific intent to dissuade the witnesses by force or threat and for the benefit of a

gang. The trial court defined the specific intent requirement as acting

“maliciously,” meaning a person “unlawfully intends to annoy, harm, or injure
 Page 3 of 10

someone else in any way or intends to interfere in any way with the orderly

administration of justice.” Although Atlas’s attorney presented a mental health

defense, only Atlas testified in support of the defense, and the prosecution

understandably characterized his testimony as “self-serving” without the support of

even a mental health expert.

Atlas argued before the California Supreme Court on collateral review that

his attorney rendered ineffective assistance of counsel by failing to retain a mental

health expert and to investigate the basis for a potential mental health defense.

Atlas asserted that a properly presented mental health defense would have rebutted

the required specific intent for his conviction. Atlas supported his claim by

submitting mental health records, declarations from his trial counsel and family

members, and an expert evaluation prepared by Dr. Jason H. Yang. He also

requested an evidentiary hearing to further develop the factual basis for his claim.

The California Supreme Court nonetheless summarily denied his claim without

first holding an evidentiary hearing.

In his federal petition for a writ of habeas corpus, Atlas requested an

evidentiary hearing. When a state court has denied relief without holding an

evidentiary hearing, a federal habeas court must grant a petitioner’s request for an

evidentiary hearing when three conditions are met. First, the petitioner must assert

“a colorable claim,” meaning the petitioner must “allege specific facts which, if
 Page 4 of 10

true, would entitle him to relief.” Earp v. Ornoski, 431 F.3d 1158, 1167 & n.4 (9th

Cir. 2005). Second, the petitioner must not have “failed to develop the factual

basis of his claim in state court.” Hurles v. Ryan, 752 F.3d 768, 791 (9th Cir.

2014); see 28 U.S.C. § 2254(e)(2). And third, the petitioner must show that the

state court’s decision was based on an unreasonable determination of the facts

under § 2254(d)(2), a showing that is met if the petitioner can establish one of the

circumstances described in Townsend v. Sain, 372 U.S. 293, 313 (1963). Earp,

431 F.3d at 1167. Atlas has met all three conditions.

First, Atlas has asserted a colorable claim of ineffective assistance of

counsel. Under Strickland v. Washington, 466 U.S. 668 (1984), Atlas must

establish both that his attorney’s performance was deficient and that there is a

reasonable probability that, but for those errors, the result of the proceeding would

have been different. Id. at 687–88, 694. As explained below, Atlas has alleged

specific facts that, if true, would entitle him to relief.

Dr. Yang’s report and the mental health records demonstrate that Atlas has a

history of serious mental health issues. Atlas first heard voices and saw ghosts as a

child but was able to ignore them. After high school, he moved to England to play

soccer and, by staying active, he was able to ignore the infrequent auditory or

visual hallucinations. He raised a family and worked various jobs while in

England until the age of 37, when he moved back to the United States. In 2009,
 Page 5 of 10

however, he began exhibiting severe psychiatric symptoms. Over the years,

clinicians have diagnosed Atlas with variations of bipolar disorder, psychotic

disorder, and schizoaffective disorder. Atlas was most recently diagnosed with

schizoaffective disorder, bipolar type.

Atlas’s mental health issues have contributed to previous run-ins with law

enforcement and being placed on psychiatric holds. In December 2009, police

brought Atlas in on his first documented psychiatric hold, when Atlas was hitting

the walls and “afraid of demons coming out of the toilet.” In February 2012,

police brought Atlas to a hospital on another psychiatric hold after he walked into a

McDonald’s restaurant and “threatened to blow the place up.”

Declarations from Atlas’s family members corroborate his history of mental

health issues. In late 2011 or early 2012, Atlas lived with his younger sister for a

year and a half. She attested that Atlas acted strangely at times, “as though he had

a split personality,” and sometimes said “things that made no sense,” including

“things that would sound threaten[ing] to anyone who did not know him well.” In

late March and early April 2013, shortly before the offense conduct at issue here,

Atlas lived with his grandmother. She attested that during that time, he was

“acting very strangely” by blurting out “things that were weird or did not make

sense,” and would “talk about hearing voices.”

Atlas’s symptoms increased in severity shortly before his arrest on April 2,
 Page 6 of 10

2013. At the end of March 2013, Atlas went to a clinic to obtain a new medication

regimen. A psychiatrist determined that he was in a manic state and presenting

“building mania.” Atlas was prescribed antipsychotic medication and mood

stabilizers, but when police arrested him less than a week later, he had taken the

antipsychotic medication for only three days after it had been prescribed. He did

not take his medication the day before, the day of, or the day after the offense. He

also had trouble sleeping and had not taken any of his mood-stabilizing

medication.

Crediting these facts as true, as we must at this stage of the proceedings, the

record before the California Supreme Court establishes that Atlas’s trial counsel

performed deficiently. “Trial counsel has a duty to investigate a defendant’s

mental state if there is evidence to suggest that the defendant is impaired.”

Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir. 2003). Here, according to a

declaration from Atlas’s attorney, he failed to hire a mental health expert or

investigate the basis for a mental health defense despite knowing about Atlas’s

history of mental health issues. His attorney could not make a strategic decision to

forego hiring a mental health expert without first conducting a reasonable

investigation that would allow him to make an informed decision. See Weeden v.

Johnson, 854 F.3d 1063, 1069–70 (9th Cir. 2017). Even Atlas’s lack of

receptiveness to a mental health defense did not absolve his attorney of the duty to
 Page 7 of 10

at least investigate the basis for such a defense. See Douglas, 316 F.3d at 1086.

The facts described above, if true, would also establish that Atlas was

prejudiced by his attorney’s deficient performance. Had this evidence been

presented to a jury, “the probability of a different result is sufficient to undermine

confidence in the outcome.” Weeden, 854 F.3d at 1072; see also Bloom v.

Calderon, 132 F.3d 1267, 1278 (9th Cir. 1997). Counsel’s presentation of a

mental health defense should have rested on at least one medical opinion, as even

the prosecution remarked during trial. Dr. Yang’s report placed Atlas’s mental

health history and his offense conduct in context. Dr. Yang opined that when Atlas

made the threatening statements to the victims on the street and in front of a police

officer, he was suffering from “bouts of mania, paranoia, and disorganized

outbursts.” As noted above, less than a week before his arrest, Atlas had started a

new medication regimen, with which he was noncompliant at the time of the

offense. And at that point, the treatment provider indicated that Atlas was already

presenting with “building mania.” Significantly, Dr. Yang emphasized in his

report that it would have taken at least four weeks for the new medication to be

fully effective. Furthermore, comparing the offense conduct with the past

McDonald’s incident when Atlas was brought in on a psychiatric hold reveals

further similarities: Both times, Atlas was noncompliant with his medication and

yelled what could be perceived as threats in public.
 Page 8 of 10

Had the evidence detailed above been presented to and credited by the jury,

there is a reasonable probability that at least one juror would have concluded that

Atlas did not harbor the specific intent required for the crime of dissuading a

witness by force or threat and for the benefit of a gang. At the time of the offense,

Atlas had no documented history of gang activity, and there is ample history of his

mental health issues. Testimony from a qualified expert would have “added an

entirely new dimension to the jury’s assessment of the critical issue of . . . mens

rea.” Weeden, 854 F.3d at 1072.

The State argues that the California Supreme Court’s summary denial was

proper given credibility issues surrounding Dr. Yang. The California Supreme

Court took judicial notice of state records showing that a few months after

completing his psychiatric evaluation of Atlas, Dr. Yang pleaded guilty to making

false material misrepresentations as part of an insurance fraud scheme. But when

determining prima facie sufficiency, the California Supreme Court must draw all

inferences in Atlas’s favor and cannot make credibility determinations. See Nunes,

350 F.3d at 1055 n.7, 1056. Accordingly, any determination that Dr. Yang’s report

lacked credibility could not be made without granting Atlas an evidentiary hearing.

Second in the trio of conditions that Atlas must satisfy to obtain an

evidentiary hearing in federal court, Atlas adequately developed the factual basis

for his claim before the California Supreme Court. He submitted his mental health
 Page 9 of 10

records, declarations from his trial counsel and family members, and Dr. Yang’s

evaluation, thus providing the factual underpinning for his claim. He also

requested an evidentiary hearing to further develop the facts supporting his claim.

“A petitioner who has previously sought and been denied an evidentiary hearing

has not failed to develop the factual basis of his claim.” Hurles, 752 F.3d at 791.

Third, and finally, Atlas has established one of the circumstances described

in Townsend v. Sain—namely, “the fact-finding procedure employed by the state

court was not adequate to afford a full and fair hearing.” 372 U.S. at 313; see

Hurles, 752 F.3d at 791; Earp, 431 F.3d at 1169. When a state court’s decision

turns on the resolution of a disputed issue of fact—particularly when, as here,

credibility determinations are at issue—an evidentiary hearing will usually be

required in order for the state court’s fact-finding procedure to be “adequate to

afford a full and fair hearing.” Earp, 431 F.3d at 1167, 1169; see also Perez v.

Rosario, 459 F.3d 943, 950 (9th Cir. 2006). An exception exists when the record

before the state court “conclusively establishes” the fact at issue, but that is not the

case here. Perez, 459 F.3d at 951. In addition to Dr. Yang’s report, Atlas

submitted ample other evidence supporting Dr. Yang’s ultimate opinion that Atlas

was suffering from a manic episode during the offense conduct. Certainly, nothing

in the record conclusively refutes that view. Atlas was not required to prove his

claim “with absolute certainty” before being granted an evidentiary hearing.
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Nunes, 350 F.3d at 1054.

Because the California Supreme Court’s decision was “based on an

unreasonable determination of the facts,” 28 U.S.C. § 2254(d)(2), Atlas is entitled

to an evidentiary hearing on his ineffective-assistance-of-counsel claim. See

Hurles, 752 F.3d at 790–92; Earp, 431 F.3d at 1167. I would thus vacate the

district court’s judgment and remand for an evidentiary hearing.