FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RALPH INTERNATIONAL THOMAS,
Petitioner-Appellee, No. 09-99024
v.
D.C. No.
3:93-cv-00616-MHP
KEVIN CHAPPELL, Warden of San
Quentin State Prison, OPINION
Respondent-Appellant.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted
August 11, 2011—San Francisco, California
Filed May 10, 2012
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Graber;
Dissent by Judge O’Scannlain
4961
4964 THOMAS v. CHAPPELL
COUNSEL
Gerald A. Engler, Senior Assistant Attorney General, State of
California, San Francisco, California, for the respondent-
appellant.
A. J. Hutchins, Berkeley, California, for the petitioner-
appellee.
OPINION
GRABER, Circuit Judge:
Respondent, the Warden of San Quentin State Prison,
appeals from the district court’s grant of a writ of habeas cor-
pus to Petitioner Ralph International Thomas. The California
Supreme Court held that Petitioner received constitutionally
ineffective assistance of counsel at his trial but that trial coun-
sel’s deficient assistance did not prejudice Petitioner. The dis-
trict court disagreed with the latter conclusion, held that
Petitioner had established prejudice, and granted the writ. We
affirm.
FACTUAL AND PROCEDURAL HISTORY
In the early morning hours of Friday, August 16, 1985,
some person or persons murdered Greg Kniffin and Mary
THOMAS v. CHAPPELL 4965
Gioia near a homeless encampment named Rainbow Village.
Both victims had been beaten badly, shot in the neck by a
high-powered firearm at point-blank range, and then dragged
into San Francisco Bay. After sunrise on the morning of the
murders, a jogger noticed a body floating in the Bay and con-
tacted the police. The police recovered Mary’s body and, the
next day, police divers discovered Greg’s submerged body.
Ten days after the murders, the police arrested Petitioner.
A. Trial
1. The Prosecution’s Case
At trial, the prosecution readily admitted that it had no
direct evidence of Petitioner’s guilt. For instance, there had
been no witnesses to the crimes, and no murder weapon was
ever found. The prosecution did present, however, consider-
able circumstantial evidence that supported the conclusion
that Petitioner had committed the murders. The evidence pre-
sented by the prosecution tended to demonstrate the following
facts.1
Rainbow Village was an undeveloped landfill area near the
Berkeley, California, marina. The City of Berkeley had set
aside the area for persons living in their motor vehicles, and
the City provided some rudimentary services such as a sink
and running water. The City rented out approximately two
dozen stalls for vehicles, and a community of residents lived
in Rainbow Village on a generally permanent basis. Peti-
tioner, a well-known resident of Rainbow Village, lived in his
car.
In addition to the residents, other persons commonly spent
the night just outside the official confines of the Village. In
1
We recount the facts only to the extent necessary for our review. For
a more complete description, see People v. Thomas, 828 P.2d 101 (Cal.
1992).
4966 THOMAS v. CHAPPELL
particular, Rainbow Village was a popular stop-over point for
persons, commonly referred to as “Deadheads,” who followed
the Grateful Dead band on tour. At the time of the murders,
approximately ten to thirty Deadheads were staying in or
adjacent to Rainbow Village in an assortment of motor vehi-
cles, including a bus known as the “Dead On” bus.
The murder victims, Greg and Mary, were associated with
the Deadheads. Greg had been traveling with the Deadheads
on the Dead On bus for more than a month. Mary previously
had been visiting a private home in Berkeley, but she had
been staying on the Dead On bus during the week before the
murders. Greg was 18 years old, and Mary was 22 years old.
Petitioner possessed a high-powered rifle, which he usually
stored in a case in the rear part of his car, where he also stored
a “tupperware”2 container holding ammunition. On the eve-
ning before the murders, sometime around dusk, Petitioner
fired his rifle at a flag flying over one of the vehicles parked
in Rainbow Village.
Later that night, a group of people gathered to party in and
around several vehicles parked in Rainbow Village. The
group included both permanent residents and Deadheads; in
particular, the group included Petitioner, Mary, and several
others. At some point late in the evening, most of the party-
goers, including Petitioner and Mary, left to purchase beer.
On the way back to Rainbow Village, they stopped to pick up
Greg, who was walking along the side of the road. Upon
returning to Rainbow Village, the group—which now
included Petitioner, Mary, and Greg—resumed drinking and
talking. Petitioner retrieved a bottle of whiskey from his car
and drank from that; others drank beer.
2
Because the witnesses used the word “tupperware,” we follow that
convention.
THOMAS v. CHAPPELL 4967
In the early morning hours, Greg and Mary announced that
they were going to take a walk, and they left the party. Peti-
tioner left at about the same time, without saying where he
was going. The party disbanded.
Around the same time, or shortly thereafter, a Rainbow Vil-
lage resident named Vincent Johnson saw Greg, Mary, and
Petitioner standing along the side of the access road that led
into Rainbow Village. According to Vincent, Petitioner had a
“grim expression,” did not look “happy,” and possibly
appeared to be “angry” or “pissed off.” Of the witnesses who
testified at trial, Vincent was the last person to see Greg and
Mary alive.
Petitioner was next seen several hours later, around sunrise,
near the frontage road a short distance from Rainbow Village.
According to the witness, Petitioner was bent over some trash
bags, apparently looking through the trash. Another witness
saw Petitioner a few hours later, at about 9:00 a.m., at an
intersection in Berkeley. The witnesses who saw Petitioner in
the morning described him as wearing a pair of camouflage
pants, whereas the witnesses who saw Petitioner the previous
evening described him as wearing a pair of jeans.
By about 10:00 a.m., Petitioner returned to Rainbow Vil-
lage and reported to several residents of Rainbow Village that
his rifle was missing. Shortly thereafter, Rainbow Village res-
ident Harry Shorman rode by on his bike, announcing that a
body had been found in the Bay.
Many people, including Petitioner, gathered to watch the
police’s efforts to retrieve the body. During the recovery pro-
cess, a police detective heard Petitioner state, apparently to no
one, “[t]hat’s Mary.” When Petitioner made his comment,
Petitioner was standing approximately 45 feet from the body,
and only part of the body and its clothing could be seen. The
detective who overheard Petitioner’s comment testified that,
at the time Petitioner made his comment, the detective could
4968 THOMAS v. CHAPPELL
not even discern the gender of the body. The body was later
identified as Mary.
The detective then questioned Petitioner about the events of
the previous evening. Petitioner’s account of the evening up
to the end of the party generally accorded with the description
above: He had been partying with a group of people and had
gone on a beer run, and the party eventually disbanded. Peti-
tioner said that, after he left the party, he decided to walk to
a liquor store in Berkeley. On leaving Rainbow Village, he
encountered Greg and Mary by the side of the access road.
Greg asked for a match, and the three of them smoked mari-
juana together. Petitioner then continued on his trip to the
liquor store, leaving Greg and Mary behind.
Petitioner then described a series of long walking trips that
the prosecution labeled implausible. According to Petitioner,
he first walked to the liquor store in Berkeley, but it was
closed. He returned to Rainbow Village and then decided to
walk to People’s Park in Berkeley to purchase some mari-
juana. Unable to find a marijuana seller at the park, he
returned to Rainbow Village again and decided to do his laun-
dry. He then walked to a laundromat, did his laundry, and
returned to Rainbow Village. According to the prosecution’s
calculations, the total mileage logged by Petitioner was 16.8
miles. The detective took down Petitioner’s information and
ended the conversation. At trial, police officers assigned to
the areas described by Petitioner testified that they did not
recall seeing Petitioner.
Later that day, Petitioner brought Rainbow Village resident
Thomas Medlin a gun-cleaning kit and asked Medlin to store
it for him. Medlin initially agreed and accepted the kit. But
when Petitioner returned with a tupperware container consis-
tent in description with a tupperware container that Petitioner
used to store ammunition, Medlin returned the gun-cleaning
kit and told Petitioner that he would not store anything for
him. Petitioner also told Medlin that he had been “dumpster
THOMAS v. CHAPPELL 4969
diving” throughout the previous night, which the prosecution
argued conflicted with Petitioner’s story of his travels in
Berkeley for liquor and marijuana, told to the police detective.
The police soon discovered the murder site, near the shore
where Mary’s body was found. The site contained blood
stains, a jaw bone, teeth, and drag marks leading toward the
water. In the drag marks between the murder site and the edge
of the water, the police found a corncob pipe with a broken
stem. In an interview with the police, Petitioner said that,
when he, Greg, and Mary had smoked along the side of the
road in the middle of the night, they had used his corncob
pipe with a broken stem. Petitioner reported that he no longer
had the pipe and that he either lost it when he was with Greg
and Mary or left it behind with them.
The police arrested Petitioner on August 26, 1985, and exe-
cuted a search warrant on his car. They found a gun-cleaning
kit, Petitioner’s empty rifle case, a paper bag containing
approximately 20 expended rifle shell casings, a plastic bag
with more expended shell casings, a tupperware container
holding matches, a second tupperware container with fish
hooks, and some clothing.
At trial, in addition to establishing the chronology
described above, the prosecution offered other circumstantial
evidence implicating Petitioner in the murders. For example,
Petitioner’s high-powered rifle was capable of producing the
wounds found on the victims. Moreover, Petitioner’s rifle had
some peculiarities such that, if operated by a person unfamil-
iar with the rifle, the loading mechanism might jam. The pros-
ecution suggested that, accordingly, it was implausible that
someone stole Petitioner’s rifle and committed the murders
with it. As another example, some witnesses testified that
Petitioner liked to play a game that he called “stalk,” in which
he would sneak up on unsuspecting persons without their
knowledge.
4970 THOMAS v. CHAPPELL
The prosecution also pointed out inconsistencies and other
oddities in Petitioner’s statements to the police after the mur-
ders. For example, during one interview, Petitioner estimated
that he arrived at the laundromat, to wash his clothes, the
morning of the murders at approximately 6:00 a.m. When the
police detective asked him what time the laundromat opened,
Petitioner replied that it did not open until 7:00 a.m., so he
actually must not have arrived until 7:00 a.m. Also, the wit-
ness who saw Petitioner walking in Berkeley in the morning
testified that Petitioner was not carrying anything, including
not carrying any clothes.
According to a police detective, Petitioner originally said
that Greg was at the party in Rainbow Village but later told
him that Greg was not present. Additionally, sometimes Peti-
tioner stated that Greg and Mary asked for a match and at
other times he stated that they asked for marijuana, too. The
prosecution also presented evidence that a book of matches
was found in Mary’s clothing, suggesting that the victims
would not have needed to ask Petitioner for matches.
Finally, a police detective told Petitioner that the police
could not figure out a motive. Petitioner responded that he
could think of plenty of reasons why someone would want to
murder Greg and Mary. When pressed, Petitioner paused and
then said that he could not think of any motive at that time.
The detective asked Petitioner if he would be willing to take
a lie detector test about the missing rifle. Petitioner replied
that he would have to think about it and get some legal advice.3
2. The Defense
The defense strategy was twofold. First, the defense argued
that the prosecution had not met its high burden of proving
the case. The defense emphasized the circumstantial nature of
3
The record does not disclose whether Petitioner ever took a lie detector
test.
THOMAS v. CHAPPELL 4971
the evidence against Petitioner, pointed out weaknesses in that
evidence, and reminded the jury of the government’s high
burden of proof.
The prosecution had not established motive or produced a
murder weapon. There were no witnesses to the crimes. No
blood stains were found on Petitioner’s clothing. Petitioner
had no visible scars, bruises, or other marks that might be
expected after a struggle.
The defense presented evidence that, although Greg had
been wearing shoes and a colorful serape the night before he
was murdered and although the police had searched Petition-
er’s possessions for those items, the police never found
Greg’s shoes or serape.
In response to the prosecution’s argument that Petitioner’s
long walks were implausible, the defense presented evidence
that Petitioner had more than enough time to complete his
long journeys throughout the early morning. Although Peti-
tioner asked Medlin to store his gun-cleaning kit and a tupper-
ware container, Petitioner was far from alone in this regard:
In the wake of the murders, several other residents similarly
had asked Medlin to store incriminating items, for fear that
the police soon would search Rainbow Village. Similarly, the
defense suggested that Petitioner may have identified Mary’s
body—by stating “[t]hat’s Mary”—when he was much closer
to the body than the police detective suggested. Moreover, it
is plausible that a person who partied with the victim the night
before would be able to identify her body from a small num-
ber of visual clues, including the clothing that all agree was
visible.
Most fundamentally, however, none of the evidence pre-
sented by the prosecution plainly contradicted Petitioner’s
generally consistent account of what had occurred on the
night of the murders and during the following morning. Peti-
tioner had partied with the victims and others; he had smoked
4972 THOMAS v. CHAPPELL
marijuana with the victims by the side of the road; he had
reported his rifle stolen; and he had reported his corncob pipe
missing and guessed that he had left it with the victims. If
credited, Petitioner’s account provided an innocent explana-
tion for the vast majority (if not all) of the circumstantial evi-
dence presented by the prosecution.
The defense’s second strategy was to present evidence that
another person, and not Petitioner, had committed the crimes.
In this regard, the defense offered as evidence the testimony
of Vivian Cercy (and, as discussed in more detail below, only
the testimony of Vivian Cercy).
Vivian was a homeless woman who traveled throughout the
United States, typically by car or bus. Vivian testified at the
grand jury hearing but, by the time of the trial, she had left the
Bay area. Defense counsel tried, unsuccessfully, to locate her
and bring her back to Berkeley for trial. The trial court held
that she was unavailable and, under California law, permitted
the defense to read her grand jury testimony to the jury.
At the time of the murders, Vivian was the girlfriend of
Rainbow Village resident Harry Shorman. Vivian had been
staying in or near Rainbow Village for, at most, five days. She
disliked staying in Rainbow Village, because she did not think
that it was safe for her or her two young daughters.
On the night of the murders, she decided to park her car
outside the official confines of Rainbow Village, at a location
“down the road” from the Village. When she thought that
everyone had gone to sleep in the Village, at approximately
1:30 a.m., she drove to a dumpster located just outside the
Village. She saw Petitioner come to the gate and then walk
back into the Village.
Vivian got out of her car to dump some trash, when she
saw a woman and two white men—one brown-haired and one
blond-haired—standing near the dumpster. (Everyone agrees
THOMAS v. CHAPPELL 4973
that neither of the men was Petitioner, in part because Peti-
tioner is black.) During her testimony, Vivian viewed photo-
graphs and identified the woman as Mary and the brown-
haired man as Greg.4 She described the blond-haired man as
a tall, thin blond man, whom she referred to as “Bo.”5 Vivian
noticed that the blond man was holding a long, stick-like
object in his hand; the object could have been a rifle.
Vivian overheard the three people talking. The blond man
asked, “do you think she’s seen anything?” The brown-haired
man replied, “no, she couldn’t have.” Either the blond man or
the brown-haired man placed the object against the side of a
car. The woman said to the blond man, “you have to give it
back.” He replied, “this could mean money to us, we need
this.” The woman responded, “I don’t want any part of this.
I’m going.”
The woman began to walk down the hill, past Vivian’s car.
Vivian told the woman, “you don’t have to take this shit from
nobody,” and invited the woman to stay in her car. The
woman responded, “no, I’ll be alright.” The woman continued
to walk down the road. The blond man told the brown-haired
man, “I’ll take care of this.” The blond man walked down the
road, away from the Village, following the woman. Vivian
asked him for his name as he passed, but he did not reply.
Vivian returned to her original parking spot, down the hill,
and prepared herself and her children for sleep. About 15
minutes later, she heard three noises that sounded like fire-
crackers. About 90 minutes after hearing the noises, Vivian
4
The identifications were somewhat equivocal. Shown a photograph of
Mary, Vivian testified that “[t]his could be her[ ].” Shown a photograph
of Greg, Vivian testified that it “looks similar” to the man.
5
The jury never learned that, in fact, a tall, thin blond man named James
Bowen, familiarly known as “Bo,” was present in Rainbow Village on the
night of the murders. See the discussion below concerning defense coun-
sel’s constitutionally insufficient investigation.
4974 THOMAS v. CHAPPELL
saw a blond man walk up from the waterfront, wiping his
hands in the vegetation and the dirt. He had a backpack, and
he either took something out of it or put something into it.
Vivian was uncertain whether it was the same blond man
whom she had seen earlier: “It was similar to the same man.
I can’t, you know, [I] wasn’t real close to him like I was the
first time.”
Vivian decided to move her car again, in part because she
was “getting kind of afraid.” She drove back up the hill, to
just outside the gates of Rainbow Village, thinking that she
would join Harry in his bus. When she got there, she saw a
blond man, again similar to the other blond man she saw ear-
lier. The blond man was washing his hands and hair at the
sink outside the gates. He was not wearing a shirt and
appeared to be washing a shirt in the sink, too.
Vivian then decided to return to her original parking spot
once again because: “I didn’t want to invade on anybody’s
privacy if they were cleaning up in the sink, you know. Like
I said I was still unaware of the general nature of Rainbow
Village, the routine.” A little later, at approximately 4:00
a.m., a man wearing a long coat knocked on her car window
and asked for her name and for the location where she was
staying. Vivian testified that she could not recall what the
man looked like. Vivian told the man her name and said that
she was “staying up at the Village at Harry’s.” The man asked
her about Harry and his vehicle, and Vivian asked the man
why he was asking “all these questions.” The man replied,
“because I’m going to kill you.” Vivian froze, and the man
walked away. Vivian remained where she was for another
hour or so; when it started to get light out, she drove into
Berkeley.
3. Rebuttal
In rebuttal, the prosecution recalled to the stand Rainbow
Village resident Vincent Johnson, who earlier testified that he
THOMAS v. CHAPPELL 4975
saw Petitioner smoking with the victims. Vincent testified
that, a month or two after the murders, Vivian told him that
she actually had not seen anything on the night of the murders
and that “everything she said, she said because Harry told her
to say it.”
4. Closing Arguments, Jury Verdict, and Direct Appeal
In its closing arguments, the prosecution emphasized the
strength of the circumstantial evidence against Petitioner and
repeatedly encouraged the jury to find Vivian Cercy’s story a
complete fabrication. The prosecution asked the jury: “Is she
being truthful . . . ?” According to the prosecution, Vivian’s
“story” ”makes no sense[ ] at all[;] [n]o sense at all.” “She
had no knowledge of what went on that night.” The prosecu-
tion described Vivian’s testimony as a “little charade,” “truly
amazing,” “really amazing,” “fantastic, absolutely fantastic,”
“ludicrous . . . ludicrous.” The prosecution rhetorically
addressed Vivian: “Come on, Vivian. Come on, Vivian. It is
a good thing you’re out of town, you would probably be
charged with perjury.” And the last thing that the prosecution
stated before asking the jury to find Petitioner guilty beyond
a reasonable doubt was that “[t]he defense has been contrived.
The testimony of Vivian Cercy is ridiculous, at best, perjuri-
ous at worst.”
The jury deliberated for nearly five days and returned a
guilty verdict. After a penalty-phase hearing, the jury sen-
tenced Petitioner to death. On direct appeal, the California
Supreme Court affirmed. People v. Thomas, 828 P.2d 101
(Cal. 1992).
B. Habeas Proceedings
On April 15, 1996, Petitioner filed a federal habeas peti-
tion. The petition included both exhausted and unexhausted
claims. In 1997, the district court granted Petitioner leave to
amend the petition to delete unexhausted claims, and the dis-
4976 THOMAS v. CHAPPELL
trict court ordered Petitioner to file a second amended petition
upon completion of state-court proceedings.
Petitioner then filed a state habeas petition in the California
Supreme Court.6 Petitioner alleged that his trial counsel,
James Chaffee, had provided ineffective assistance of counsel
by failing to investigate and locate potential witnesses who
could corroborate Vivian Cercy’s testimony and support the
theory of third-party culpability. The California Supreme
Court appointed a referee to conduct an evidentiary hearing
on Petitioner’s claim and to make factual findings.7
1. Evidentiary Hearing
At the evidentiary hearing, Petitioner put forth evidence
that, had his trial counsel adequately investigated Vivian’s
story, he would have found eleven additional relevant wit-
nesses. The testimony of those witnesses described the fol-
lowing events that, according to Petitioner, would have
corroborated Vivian’s version of events and implicated “Bo”
in the murders.
On the night of the murders, a tall, thin blond man gener-
ally known as “Bo,” whose real name was James Bowen, was
staying in Rainbow Village. Bo was a Deadhead and, like the
victims, was staying on the Dead On bus. Bo owned a silver
Volkswagen and had it with him in Rainbow Village. Bo was
well known among the Deadheads, in part because he sold
clothing, primarily tie-dyed shirts, at Grateful Dead shows.
6
Petitioner earlier had filed two other habeas petitions, which the Cali-
fornia Supreme Court denied. Those decisions are not at issue here.
7
The California Supreme Court directed findings concerning two gen-
eral topics: whether Chaffee had conducted an adequate investigation and
whether any deficiency in the investigation prejudiced Petitioner at trial.
Because, as discussed below, the California Supreme Court found that
Chaffee conducted a constitutionally insufficient investigation, and
because Respondent does not challenge that finding here, we focus on the
evidence relevant to the prejudice determination.
THOMAS v. CHAPPELL 4977
Before the murders, Bo regularly attended Grateful Dead
shows and sold his merchandise.
A friend of Bo’s, a white man named Weston Sudduth, also
was a Deadhead and was staying in Rainbow Village on the
Dead On bus. Weston commonly wore a long trench coat or
pea coat. Bo and Weston were seen together the day before
the murders.
Bo had a sexual relationship with Mary. A night or two
before the murders, one witness testified, Bo had argued with
Mary and sounded controlling toward her. Mary seemed upset
and afraid. One witness testified that she had witnessed both
Bo and Weston being verbally or physically abusive to
women in the past.
On the night of the murders, one witness saw a white man,
wearing a long trench coat or a pea coat, walk over to Vivi-
an’s car and talk to Vivian. The witness was too far away to
hear what was said.
On the day after the murders, several witnesses testified
that Bo seemed nervous, panicky, or anxious and in a hurry
to leave Rainbow Village. Some of those witnesses observed
Bo’s anxious behavior before Mary’s body had been found.
Bo also exhibited strange behavior during three separate inci-
dents on the day after the murders. First, before Mary’s body
was found, one witness overheard Bo tell Weston, as they
stood at the community sink, that “sometimes a man’s got to
do what a man’s got to do.”
Second, at some point after Mary’s body had been found,
one witness was alone in the Dead On bus with Bo and Wes-
ton. When the witness asked them what they had done the
previous night, Bo responded that “we went swimming into
the bay last night.”8 The witness testified that Weston “sud-
8
The witness was unsure whether Bo said that “I” went swimming into
the Bay or whether Bo said that “we” went swimming into the Bay.
4978 THOMAS v. CHAPPELL
denly jabbed” Bo with his elbow and “gave him a look like
don’t say anything more.” The conversation quickly ended,
and Bo and Weston left the bus.
The third incident involved Claus von Wendel. Von Wen-
del lived on a boat a short distance from Rainbow Village.
The morning after the murder, von Wendel awoke early and
noticed a bag sitting on the veranda part of his boat. He
picked it up but then put it back down, thinking that its owner
would return to collect it. When von Wendel learned that a
body had been found in the Bay, he became suspicious about
the bag and opened it. The bag contained some books, a driv-
er’s license registered to a man with the name of “Bryan” or
“Bryant,” a pair of shoes, and a serape.9 Petitioner suggests
that the shoes and serape could have been Greg’s shoes and
serape, which the police never found.
Later that day, a blond man came to claim the bag. At the
evidentiary hearing, von Wendel identified a picture of James
Bowen, or Bo, as the same person who came to claim the bag.
Von Wendel told the blond man that he did not have permis-
sion to leave his belongings on von Wendel’s boat. When Bo
told von Wendel that he had slept on the veranda of von Wen-
del’s boat, von Wendel became angry. Bo, who seemed like
he was in a hurry to leave, got in his Volkswagen and left
hastily. Another person was seated in the car throughout the
exchange, and that person left in the car with Bo.
A few days after the murders, a local Berkeley resident
who had been in the process of making a documentary about
Rainbow Village decided to visit the Village to conduct inter-
views about the murders. In one video, taken two or three
9
At the evidentiary hearing, von Wendel stated that he observed a “blan-
ket type material” in the bag. In a later declaration and deposition, von
Wendel clarified that what he had seen was “a Mexican looking serape or
blanket” and “Mexican type clothing . . . [l]ike the woven cotton or wool.
What’s the word? Like a serape.”
THOMAS v. CHAPPELL 4979
days after the murders, Vivian Cercy recounted on videotape
what she had seen.10 Her description largely accorded with her
testimony read at Petitioner’s trial.
After the murders, Bo moved to Chico, California.
Although Bo had been a regular attendee of Grateful Dead
shows before the murders, he no longer was seen at the con-
certs, except on rare occasions. When he did attend, he
appeared to be avoiding those who had been at Rainbow Vil-
lage at the time of the murders.
One of Bo’s friends while Bo was living in Chico described
a strange incident. The witness had been lamenting to Bo
about a broken heart. Bo stated, without elaboration, that he
had “killed his brother over a woman.” At the time, the wit-
ness had not heard about the murders in Rainbow Village. He
thought that Bo’s comment was bizarre, but he did not ask Bo
further questions.
Bo lived with a group of Deadheads in Chico for several
months. Weston, too, lived in Chico and occasionally visited
the apartment where Bo lived. Two of Bo’s apartment mates
testified about an odd sequence of events potentially relevant
to Petitioner’s case. One day, Weston came over to the apart-
ment and found Bo sitting on the couch. Weston started talk-
ing to Bo and using hand gestures in a confrontational
manner. Weston stated to Bo: “How can you sleep at night?
How can you live with yourself?” (or, according to another
witness, “how could you do it? How can you sleep with your-
self at night?”). Bo’s demeanor was sheepish and passive.
Weston then asked Bo, “why were you washing your hands
in the early morning at the bathrooms?” Weston then left.
Bo became severely withdrawn. He locked himself in his
room for the next few weeks, talked very little to others, and
10
Because Vivian was afraid, she refused to appear on camera. Instead,
she told her story from inside a vehicle, out of the camera’s view.
4980 THOMAS v. CHAPPELL
went out only at night. A few weeks after the Weston con-
frontation, Bo surprised his apartment mates and joined them
and others on a hike. Bo became separated from the group and
then reappeared. Bo was in “a complete rage.” He was crying,
very upset, and frantic. He accused his companions of aban-
doning him. The group soon returned to the apartment. In the
middle of the night immediately following the hike, Bo
secretly packed up all of his belongings and left the apartment
without a word to the others.
The state-court referee issued a 57-page report. The referee
held that Chaffee had conducted an adequate investigation.
The referee also found that Chaffee could have located only
three of the eleven relevant witnesses: Claus von Wendel,
Randy Turley, and Jong Cheol Cho. The referee found that
Chaffee reasonably declined to call von Wendel as a witness
and that Chaffee “could not reasonably have learned” that
Turley and Cho “had any useful information as a potential
witness.”
2. California Supreme Court’s Opinion
The California Supreme Court adopted only some of the
referee’s findings. In re Thomas, 129 P.3d 49 (Cal. 2006).
With respect to Chaffee’s investigation, the court held, in
part:
As the referee found, and the parties do not dis-
pute, Chaffee conducted no investigation for sup-
porting witnesses or corroborating evidence outside
Rainbow Village, despite knowing or having strong
reason to suspect that both the victims and Bo came
not from Rainbow Village but from the distinct
Deadhead community. We conclude this omission
was unreasonable. Chaffee’s apparent strategy was
twofold: he wanted to cast doubt on the prosecu-
tion’s circumstantial evidence, including the appar-
ent lack of motive, and he wanted to offer the jury
THOMAS v. CHAPPELL 4981
the possibility of an alternate killer. Given this strat-
egy, any evidence adding to the plausibility of the
alternate-killer theory would have been critical. Did
Bo exist? Did he have ties to the victims? What was
the subject of the argument Cercy reported witness-
ing between Bo and [Mary] Gioia? Did Bo own or
have access to a gun? Given the actual defense strat-
egy, these were crucial questions. Given the knowl-
edge that [Mary] Gioia and [Greg] Kniffin were
Deadheads who had come to Berkeley for a show,
and reason to suspect that Bo (if he existed) was
likewise a member of this transient Deadhead com-
munity, a reasonable attorney would have made
some effort to trace Bo in that community.
. . . [Chaffee] never asked an investigator to con-
duct any search in the Grateful Dead community, nor
did he ask anyone more familiar with that commu-
nity how he might go about tracking down a Dead-
head. A reasonable attorney in 1985, charged with
representing a capital defendant, would have pursued
what leads Chaffee had in the Grateful Dead com-
munity, the community from which the victims and
Bo came.
....
We conclude that Chaffee failed to conduct a rea-
sonable investigation for evidence to corroborate
Vivian Cercy’s testimony and support the theory that
someone other than Thomas was the actual killer.
His decision to proceed with Cercy’s testimony
alone was a consequence of this unreasonably lim-
ited investigation and thus was not a justifiable tacti-
cal decision. Consequently, Thomas has
demonstrated that his counsel’s performance was
deficient.
4982 THOMAS v. CHAPPELL
Id. at 57-59.
With respect to prejudice, the California Supreme Court
adopted the referee’s finding that Chaffee reasonably could
not have found eight of the eleven potential witnesses. Id. at
62. With respect to von Wendel, the court held that Chaffee
reasonably declined to call him as a witness due to a “tactical
justification.” Id. at 63. With respect to the final two wit-
nesses, Turley and Cho, the California Supreme Court
adopted the referee’s factual findings related to the witnesses’
prospective testimony, id., but held that there was no reason-
able probability that their testimony would have affected the
jury’s verdict, id. at 66.
The court held that, “though circumstantial, the evidence
against Thomas was considerable.” Id. The court held that the
“evidence fell into four categories: (1) Thomas’s ownership of
a high-powered rifle that could have been the murder weapon;
(2) sightings of him with the victims shortly before their
deaths; (3) incriminating statements and actions by Thomas in
the days following the murders; and (4) certain additional
physical evidence,” most notably the corncob pipe found
along the drag marks leading to the water. Id. at 63. In light
of this “considerable” evidence, the court concluded:
The real difficulty with the potential case against
“Bo,” however, is that it does absolutely nothing to
undermine the case actually presented against
Thomas—the fortuitous “disappearance” of his .44
magnum rifle, the multiple witnesses who saw him
with the victims, his identification of [Mary] Gioia
the next morning, the repeated inconsistencies in his
shifting explanations, and the corncob pipe found at
the scene. Put another way, even if listening to the
habeas corpus witnesses might in the abstract make
one ponder a small possibility that “Bo” might have
killed [Mary] Gioia and [Greg] Kniffin, listening to
the prosecution case would have established in a rea-
THOMAS v. CHAPPELL 4983
sonable juror’s mind the near certainty that Thomas
did kill them. We thus conclude that Thomas has not
demonstrated a reasonable probability of a more
favorable outcome.
Id. at 66.
Justice Kennard dissented. In her view, a reasonable lawyer
would have located more than just the three witnesses
described by the majority. Id. at 70 (Kennard, J., dissenting).
On the issue of prejudice, Justice Kennard stated:
The witnesses who testified at the evidentiary
hearing would have greatly strengthened witness
Cercy’s preliminary hearing testimony had they tes-
tified at petitioner’s trial. They would have estab-
lished that “Bo” was a real person, not a figment of
Cercy’s imagination; that Bo was in Rainbow Vil-
lage on the night of the two murders; and that Bo
had an unpleasant talk with murder victim [Mary]
Gioia shortly before her death. And had those wit-
nesses been called at trial, their testimony would
have shown that several months after the two mur-
ders, Bo admitted killing his “brother” over a
woman. The word “brother” in this context could
have been a reference to a close companion rather
than a sibling, and Bo’s statement might have been
considered by the jury as an admission of guilt.
Most significant, however, was the testimony of
Jong Cheol Cho. He testified that, during a conver-
sation about the murders the day after they
occurred, Bo said he had gone swimming in San
Francisco Bay the previous night, and that Bo then
suddenly stopped talking after his friend Weston
elbowed him in the ribs. Unless Bo had some inno-
cent reason to go swimming in San Francisco Bay at
night (and the majority offers none) and an innocent
4984 THOMAS v. CHAPPELL
reason to mention this late-night swim during a con-
versation about the murders (and the majority offers
none), Bo’s statement strongly implicates him in the
murders of [Mary] Gioia and [Greg] Kniffin, whose
killer or killers had dumped their bodies in the bay.
When a criminal defendant at trial has been denied
the constitutional right to effective representation,
reversal is required if there is a “reasonable
probability”—that is, a probability “sufficient to
undermine confidence in the outcome”—that coun-
sel’s incompetence affected the jury’s verdict. (Str-
ickland v. Washington, [466 U.S. 668, 694 (1984)].)
Here, if the jury had heard the testimony of the wit-
nesses that petitioner presented at the evidentiary
hearing, it might nonetheless have convicted him of
the two murders and imposed the death sentence.
But there is at least a reasonable probability that it
would not have done so. Notwithstanding the mini-
mal showing by the defense in support of its claim
that Bo rather than [petitioner] committed the mur-
ders, the jury deliberated for five days before render-
ing its verdicts. These lengthy deliberations are a
strong indication that the jury found the issue of
[petitioner]’s guilt to be close and difficult. Had
[petitioner]’s trial attorney called the witnesses who
later testified at the evidentiary hearing, his claim
that James Bowen rather than petitioner committed
the murders would have been greatly strengthened,
and the jury might well have concluded there was a
reasonable doubt about [petitioner]’s guilt and
declined to convict him of the capital murders.
Id.
3. District Court’s Opinion
Petitioner then filed, in federal court, a second amended
habeas petition, which included the now-exhausted claim of
THOMAS v. CHAPPELL 4985
ineffective assistance of counsel. In the federal proceedings,
Respondent does not dispute that Chaffee’s representation
was deficient. The only issue before the district court, there-
fore, was whether the concededly deficient performance prej-
udiced Petitioner.
In a written order, the district court concluded that Peti-
tioner had demonstrated prejudice. The district court held that
the California Supreme Court’s finding that a competent
investigation would have discovered only three of the eleven
witnesses was not fairly supported by the record. The district
court held that a competent investigation would have discov-
ered all eleven of the witnesses proffered by Petitioner.
On the issue of prejudice, the district court reasoned, in rel-
evant part:
At the outset, the evidence against petitioner was
entirely circumstantial and not substantial. As noted
supra, it included 1) petitioner’s ownership of a rifle
that could have inflicted the victims’ wounds, 2)
sightings of Thomas alone with the victims shortly
before the killings, 3) petitioner’s conduct and state-
ments before and after the murders, and 4) a corncob
pipe recovered at the murder scene that was argued
to belong to petitioner. There were no eyewitnesses
to the crime, no confession, no murder weapon was
found, and there was no blood or DNA tying peti-
tioner to the crime. Courts have found cases where
no physical evidence links the accused to the crime
to be close ones.
Moreover, each item of evidence lends itself to an
explanation that is not inculpatory. Petitioner’s rifle,
which was never clearly established as the murder
weapon, could well have been stolen, just as he con-
sistently told people. The fact that petitioner was
seen with the victims the night of the murders does
4986 THOMAS v. CHAPPELL
not establish that he killed them, particularly given
that Bo was reportedly seen with the victims later
under more suspicious circumstances. That petition-
er’s corncob pipe was found near the crime scene
can be explained by the fact that petitioner and the
victims had been smoking marijuana from that pipe,
and the plausible possibility that he did not retrieve
it from them. Petitioner’s statement, “That’s Mary,”
identifying [Mary] Gioia’s body when he was 45 feet
away loses its significance when considered in light
of the fact that he had already seen the body from a
closer distance before he made the remark to the
police officer, as well as [Mary] Gioia’s distinctive
and eccentric manner of dress, which would have
been recognizable to petitioner given that he had
spent the previous evening in her company. Finally,
petitioner’s “inconsistent statements,” which mostly
pertained to his wanderings the night of the murder,
are not so numerous, inexplicable or dramatically
inconsistent as to suggest a fabricated story. For
example, one of the inconsistencies cited by the state
court was that petitioner initially stated that [Greg]
Kniffin had not been partying with petitioner and
others the night before the murders, but later said
that he was in fact with them. As the trial evidence
established, [Greg] Kniffin was not part of the party
when it started, but was picked up by the group later,
after they gave another partygoer a ride to Rich-
mond. Furthermore, although petitioner’s story about
trekking around Berkeley on the night of the murders
may have been strange, he was perhaps a strange
person, but not necessarily a murderer. Petitioner
told Detective Eihl that on the night before the mur-
ders, he partied with [Mary] Gioia and others in a
van. He stated that he later ran into [Mary] Gioia and
[Greg] Kniffin on a road leading from Rainbow Vil-
lage to a liquor store, smoked marijuana with them,
THOMAS v. CHAPPELL 4987
proceeded to go to the liquor store, found it closed,
came back to Rainbow Village, got money and went
to various locations to try and buy marijuana. When
it grew light, he went to a laundromat to do laundry
and then returned to Rainbow Village. While these
activities may be odd, they are not necessarily sug-
gestive of guilt.
Although the sum of circumstantial evidence pres-
ented against petitioner was perhaps sufficient to jus-
tify his conviction, it does not follow that his trial
would have yielded the same result had a competent
investigation been completed. Indeed, had Cho, Von
Wendel and Turley, all three of whom the state court
conceded would have been found through a compe-
tent investigation, testified at trial, there is a reason-
able probability that the outcome of trial would have
been different.
Cho would have testified that there actually was a
man named “Bo” in the Deadhead community who
matched Vivian Cercy’s description, and that he was
in Rainbow Village on the night of the murders. Tur-
ley would have corroborated Bo’s existence and
description. This would have established that Cercy
was not fabricating her story. More importantly, Cho
would have informed the jury that the morning after
the murders, he had a conversation with Bo and Bo’s
friend Weston Sudduth, during which Bo said that
“I” or “we” [“]went swimming in the Bay last
night,” prompting Sudduth to jab him and give him
a look and thus ending the conversation. At this
point, the jury would have had a plausible alternate
scenario about the murders that did not inculpate
petitioner. Testimony such as this, that corroborates
an otherwise bare defense, “would have created
more equilibrium in the evidence presented to the
4988 THOMAS v. CHAPPELL
jury.” Riley v. Payne, 352 F.3d 1313, 1320-21 (9th
Cir. 2003).
The jury would have also heard from Von Wen-
del. Von Wendel would have testified about his con-
frontation with Bo, who had suspiciously left a bag
on Von Wendel’s boat some time during the night of
the murders—a bag whose contents corresponded to
the shoes and poncho that were missing from [Greg]
Kniffin’s body when it was found. When combined
with Cho’s testimony about Bo swimming in the
Bay, Von Wendel’s testimony would have bolstered
Cercy’s account, and would have led the jury to har-
bor a reasonable doubt as to whether Bo, rather than
petitioner, committed the murders.
....
The Court concludes that had trial counsel con-
ducted a competent investigation, confirmed Bo’s
existence and presented corroborating evidence of
Cercy’s testimony, there is a reasonable probability
that as least some jurors would have harbored rea-
sonable doubt with respect to petitioner’s guilt. His
failure to do so undermines confidence in the out-
come of his trial.
(Most citations omitted.)
The district court granted a writ of habeas corpus to Peti-
tioner on the claim of ineffective assistance of counsel. The
court dismissed as moot, and without prejudice, Petitioner’s
remaining claims. Respondent timely appeals. The district
court granted Respondent’s motion for a stay pending appeal.
STANDARDS OF REVIEW
We review de novo the district court’s grant of habeas
relief. McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir.
2008).
THOMAS v. CHAPPELL 4989
[1] The more stringent requirements imposed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) do not apply to this case because Petitioner filed
his habeas petition before the effective date of the Act.
Respondent argues that AEDPA applies because, even though
Petitioner filed a habeas petition before the effective date of
AEDPA, he filed an amended habeas petition after the effec-
tive date of AEDPA.11 We disagree.
[2] We have consistently held that where, as here, a peti-
tioner filed a habeas application before the effective date of
AEDPA and the district court retained jurisdiction over the
case, AEDPA does not apply even if the petitioner files an
amended petition after the effective date of AEDPA. See, e.g.,
Sivak v. Hardison, 658 F.3d 898, 905 (9th Cir. 2011) (holding
that “[o]ur review is governed by pre-AEDPA standards . . .
even though Sivak filed amended petitions after AEDPA was
enacted”); Allen v. Roe, 305 F.3d 1046, 1049 & n.1 (9th Cir.
2002) (holding that, “[b]ecause Allen filed his § 2254 petition
prior to the effective date of [AEDPA], review of his petition
is governed by pre-AEDPA law” and holding, in a footnote,
that “[b]ecause the district court retained jurisdiction over
Allen’s original 1993 petition, it is not problematic that the
amended petition was filed after the effective date of the
AEDPA”); accord Robinson v. Schriro, 595 F.3d 1086,
1098-99 (9th Cir.), cert. denied, 131 S. Ct. 566 (2010);
Mancuso v. Olivarez, 292 F.3d 939, 948-49 (9th Cir. 2002);
see also Stankewitz v. Woodford, 365 F.3d 706, 713 (9th Cir.
2004) (assuming, without deciding, that pre-AEDPA stan-
dards apply in similar circumstances).
11
Respondent did not make this argument before the district court.
Respondent urges us to excuse that failure because, in his view, the correct
standard of review in this context cannot be waived. Several of our sister
circuits have so held. Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir.
2009); Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008); Eze v. Sen-
kowski, 321 F.3d 110, 121 (2d Cir. 2003). We need not decide whether
Respondent waived the AEDPA argument because, as explained in text,
we hold that the argument fails on its merits.
4990 THOMAS v. CHAPPELL
As the Supreme Court has explained, the relevant portions
of AEDPA apply “only to such cases as were filed after the
statute’s enactment.” Lindh v. Murphy, 521 U.S. 320, 326
(1997) (emphasis added); see also id. at 336 (holding that the
relevant portions of AEDPA “apply only to cases filed after
the Act became effective” (emphasis added)). In Woodford v.
Garceau, 538 U.S. 202, 204 (2003), the Supreme Court sum-
marized Lindh as having held that the relevant parts of
AEDPA “do not apply to cases pending in federal court on . . .
AEDPA’s effective date,” and the Court “consider[ed] when
a capital habeas case becomes ‘pending’ for purposes of the
rule announced in Lindh.” The Court concluded that “a
habeas suit begins with the filing of an application for habeas
corpus relief.” Id. at 208. Because Petitioner here filed his
application for habeas corpus relief before the effective date
of AEDPA, pre-AEDPA law applies. See Smith v. Mahoney,
611 F.3d 978, 994-95 (9th Cir.) (holding that, for those same
reasons in similar circumstances, AEDPA’s statute of limita-
tions did not apply and concluding that, “[f]or the foregoing
reasons, we evaluate the merits of Smith’s claims under pre-
AEDPA standards”), cert. denied, 131 S. Ct. 461 (2010).
Under pre-AEDPA law, “[w]e review de novo questions of
law and mixed questions of law and fact, whether decided by
the district court or the state courts.” Sivak, 658 F.3d at 905
(internal quotation marks omitted). “[W]e do not review the
state court’s legal conclusions to determine whether they are
objectively unreasonable; rather, we simply resolve the legal
issue on the merits, under the ordinary rules.” Smith, 611 F.3d
at 986 (internal quotation marks omitted).
“State court factual findings are entitled to a presumption
of correctness, subject to eight exceptions enumerated in the
previous version of 28 U.S.C. § 2254(d).” Sivak, 658 F.3d at
905-06 (internal quotation marks omitted). Applicable here,
state-court factual findings are not entitled to a presumption
of correctness if they are “not fairly supported by the record.”
28 U.S.C. § 2254(d)(8) (1994); see also Jackson v. Brown,
THOMAS v. CHAPPELL 4991
513 F.3d 1057, 1069 & n.6 (9th Cir. 2008) (stating the rule
and listing the eight exceptions).
DISCUSSION
We review claims of ineffective assistance of counsel under
the two-part test set forth in Strickland v. Washington, 466
U.S. 668 (1984). First, Petitioner must demonstrate that
“counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. Second, Petitioner must demon-
strate that “there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. “A reasonable probability is
a probability sufficient to undermine confidence in the out-
come.” Id.
The California Supreme Court held that Petitioner met the
first prong of the Strickland test because his trial counsel con-
ducted a constitutionally inadequate investigation of Vivian
Cercy’s account suggesting that James Bowen had committed
the murders. Respondent did not challenge that conclusion
before the district court, and he does not challenge it before
us. In this unusual case, then, the only issue is whether there
is a “reasonable probability” that the jury would have reached
a different verdict had Petitioner’s trial counsel conducted an
adequate investigation. “To determine whether counsel’s
errors prejudiced the outcome of the trial, we must compare
the evidence that actually was presented to the jury with that
which could have been presented had counsel acted appropri-
ately.” Karis v. Calderon, 283 F.3d 1117, 1133 (9th Cir.
2002).
A. Case as Presented
Although the prosecution had no direct evidence that Peti-
tioner committed the murders, it presented circumstantial evi-
dence that cast considerable suspicion upon Petitioner. We
recounted that evidence in considerable detail, above, in the
4992 THOMAS v. CHAPPELL
Factual and Procedural History. The California Supreme
Court also has detailed the evidence, both on direct appeal,
Thomas, 828 P.2d at 106-12, and on habeas review, In re
Thomas, 129 P.3d at 63-66. For present purposes, we briefly
describe the evidence admitted at trial. We find useful the
California Supreme Court’s grouping of the evidence into
four categories: (1) Petitioner’s rifle; (2) his presence with the
victims before their deaths; (3) his incriminating statements
and actions after the murders; and (4) additional physical evi-
dence. In re Thomas, 129 P.3d at 63.
(1) Petitioner possessed a rifle that could have been the
murder weapon. Petitioner fired the rifle the night before the
murders, but the rifle had disappeared by the next morning.
Petitioner reported the rifle missing, but it was never found.
The rifle had some peculiarities such that, if a person unfamil-
iar with the rifle used it, it might jam.
(2) Petitioner was seen with the victims shortly before the
likely time of murder. Petitioner appeared angry.
(3) On the morning after the murders, Petitioner identified
the body floating in the water as Mary, even though he was
45 feet away and had few visual clues. Though his account
shifted in some details, Petitioner told the police that he had
embarked on a series of long walking journeys, totaling 16.8
miles, during the hours when the victims were murdered. Peti-
tioner asked Thomas Medlin to conceal his gun-cleaning kit
and a tupperware container that may have contained ammuni-
tion for the rifle. During interviews with a police detective,
Petitioner made some curious statements. For instance, he
changed his estimate of the time that he arrived at the laun-
dromat after being confronted with the laundromat’s hours of
operation. He also asserted that he could think of many
motives for killing the victims but declined to offer one when
asked. He told the detective that he would have to get legal
advice about whether to take a lie detector test.
THOMAS v. CHAPPELL 4993
(4) Finally, the police found a corncob pipe with a broken
stem, in the drag marks between the murder site and the edge
of the water. Petitioner admitted that he owned a corncob pipe
with a broken stem. Petitioner told the police that his pipe was
missing.
[3] The prosecution’s evidence certainly goes a long way
toward implicating Petitioner. Petitioner was present; was the
last person seen with the victims by those who testified at
trial, at a location near the murder site; had access to what
could have been the murder weapon; told a bizarre, mostly
uncorroborated tale of where he had been; identified Mary’s
body in a potentially suspicious manner; gave the police and
acquaintances somewhat conflicting descriptions of his activi-
ties on the night of the murders; acted oddly after the mur-
ders; and owned a distinctive pipe that was found between the
murder site and the Bay. The defense offered innocuous
explanations for most of that evidence and presented a strange
and wholly uncorroborated theory of third-party culpability,
through Vivian Cercy’s testimony. But the basic facts impli-
cating Petitioner, just described, remain essentially undis-
puted.
[4] Nevertheless, in our view, the case against Petitioner
was not overwhelmingly strong. The prosecution presented
circumstantial evidence only: no motive, no murder weapon,
no witness to the crime, no fingerprint evidence, and no blood
or other bodily fluid evidence. Additionally, the defense
offered an alternative version of the murders that incriminated
a tall, thin, blond white man, “Bo.”
[5] In fact, the objective clues as to the jury’s assessment
of the case strongly suggest that the case was close. The jury
deliberated for almost five full days, even though it heard
argument and evidence for only about six days. “[L]engthy
deliberations suggest a difficult case.” United States v.
Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. 2001) (en
banc) (internal quotation marks omitted); see Daniels v.
4994 THOMAS v. CHAPPELL
Woodford, 428 F.3d 1181, 1209-10 (9th Cir. 2005) (holding
that the fact that “[t]he jury deliberated for two days before
returning a verdict . . . suggests that the jury may have been
influenced by [additional] evidence had it been offered” and
concluding that “[t]his alone is sufficient for a finding of prej-
udice”); Dyas v. Poole, 317 F.3d 934, 936-37 (9th Cir. 2003)
(per curiam) (holding that “the evidence against Dyas was not
overwhelming, a fact reflected in the length of the jury’s
deliberations,” where “the jury took 3-1/2 days to deliberate
following Dyas’s 5-day trial”). As the District of Columbia
Circuit stated long ago, “[t]he jury deliberated for five days,
and one would expect that if the evidence of guilt was over-
whelming the jury would have succumbed much sooner.”
Dallago v. United States, 427 F.2d 546, 559 (D.C. Cir. 1969).
The jury also requested several readbacks of testimony on
three separate occasions, which is an indication that “[t]he
jury was clearly struggling to reach a verdict.” Gantt v. Roe,
389 F.3d 908, 916 (9th Cir. 2004); see also Merolillo v. Yates,
663 F.3d 444, 457 (9th Cir. 2011) (holding that a request for
a readback of testimony “illustrates the difficulty presented
by” the case); Merolillo, 663 F.3d at 457 (“‘[T]he jury asked
for readbacks of [witnesses’] testimony while it was deliberat-
ing, so it evidently did not regard the case as an easy one.’ ”
(second alteration in original) (quoting United States v. Blue-
ford, 312 F.3d 962, 976 (9th Cir. 2002))).
We also know that, even with the deficient performance by
trial counsel, the jury struggled with precisely the theory that
adequate representation would have bolstered. As the Califor-
nia Supreme Court stated, “aside from casting doubt on the
prosecution’s evidence, trying to offer a credible alternative
killer was the main defense.” In re Thomas, 129 P.3d at 58 n.4
(emphasis added). Two of the requested readbacks related
directly to that main defense: The jury requested “the reading
of Vivian [Cercy]’s testimony” on the first day of delibera-
tions, and on the third day of deliberations the jury asked that
the court reporter “read testimony limited to positive state-
ments that the Grateful Dead were in town on August 15 and
THOMAS v. CHAPPELL 4995
August 16 and fans/grouppies [sic] possibly in area of Rain-
bow Village.”
[6] In sum, the case was close, and a reasonable jury would
have struggled with the question whether the theory of the
alternative credible killer—the tall, thin, blond “Bo”—created
a reasonable doubt as to Petitioner’s guilt. In fact, it seems
clear that the jury actually struggled with that question,
because of the length of deliberations and the two requests for
readbacks related specifically to that question.
B. Case Including Additional Witnesses
At the evidentiary hearing, Petitioner put forth evidence
that Chaffee should have located eleven relevant witnesses.
The California Supreme Court found that, had Chaffee con-
ducted an adequate investigation, he would have found only
three of the eleven witnesses: Randy Turley, Jong Cheol Cho,
and Claus von Wendel. For purposes of our analysis, we
accept the California Supreme Court’s finding in that regard.12
The California Supreme Court considered the full testi-
mony of Turley and Cho, so there is no impediment to our
doing so.13 The California Supreme Court declined to consider
von Wendel’s testimony, however, because the court held that
Chaffee had a “tactical justification” for failing to call von
Wendel as a witness. Chaffee knew that, in the past, von
Wendel and Petitioner had had a “very loud, angry argu-
12
We do not necessarily disagree with the district court’s conclusion that
the California Supreme Court’s factual findings with respect to the other
eight witnesses are not fairly supported by the record; we simply do not
reach the issue.
13
Respondent suggests that, because the state-court referee found that
some of Cho’s statements were inadmissible hearsay, we cannot consider
those statements. We disagree. The California Supreme Court conducted
an independent review and did not adopt any of the relevant hearsay deter-
minations. Indeed, as noted in text, the California Supreme Court
addressed the potential effect of Cho’s full testimony.
4996 THOMAS v. CHAPPELL
ment,” and Chaffee feared that the prosecution would bring
out that incident in cross-examination to impugn Petitioner’s
character.
The characterization of Chaffee’s failure to call von Wen-
del as a tactical decision is not fairly supported by the record.
As the district court explained, von Wendel’s testimony
regarding the “angry argument” is inadmissible character evi-
dence. Respondent did not challenge that conclusion before
the district court, and he does not challenge that conclusion
before us. To the extent that Respondent argues that the state
trial court would have admitted plainly inadmissible evidence,
we find no support in the record or in the law for that conclu-
sion.
[7] Additionally, Chaffee had not learned the existence of
Turley or Cho (nor even interviewed von Wendel). Chaffee
accordingly had not learned how they would testify. Any tac-
tical decision not to call von Wendel as a witness was, there-
fore, wholly uninformed, because Chaffee believed—
incorrectly—that no evidence corroborated Vivian Cercy’s
testimony concerning a blond man named “Bo.” In other
words, Chaffee’s failure to call von Wendel cannot be
excused as a tactical decision because he did not have suffi-
cient information with which to make an informed decision.
See, e.g., Correll v. Ryan, 539 F.3d 938, 951 (9th Cir. 2008)
(“Counsel’s ineffective assistance . . . cannot be excused as
strategic. He failed to conduct an investigation sufficient to
make an informed judgment. To the extent that his decisions
reflected any tactical considerations, his approach . . . cannot
be considered an objectively reasonable strategy, even when
viewed under the highly deferential Strickland standard.”);
Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006)
(“Although trial counsel is typically afforded leeway in mak-
ing tactical decisions regarding trial strategy, counsel cannot
be said to have made a tactical decision without first procur-
ing the information necessary to make such a decision.”); Jen-
nings v. Woodford, 290 F.3d 1006, 1014 (9th Cir. 2002)
THOMAS v. CHAPPELL 4997
(“Although defense counsel is empowered to make such stra-
tegic decisions, Strickland demands that such decisions be
reasonable and informed.”).
[8] We therefore must consider whether there is a “reason-
able probability” that the jury would have reached a different
verdict had it heard the testimony of Turley, Cho, and von
Wendel. Before discussing the details of their testimony, we
note that, as the California Supreme Court put it, corrobora-
tion of Vivian Cercy’s testimony was “critical.” In re Thomas,
129 F.3d at 57. Corroboration is always helpful. But it was
“critical” here because, by itself, Cercy’s testimony was not
particularly believable. Cercy was a transient, who was miss-
ing throughout trial. Without any corroboration, her story
about a tall, thin, blond “Bo” arguing with the murder victims
before hearing “firecrackers,” followed by a strange incident
with yet another man in a trench coat or pea coat threatening
her life, appears to be fantasy. Indeed, the prosecution offered
a rebuttal witness, Vincent Johnson, who testified that he was
told that Cercy had made it all up.14
In order to convict Petitioner, the jury had to decide that
Cercy’s story was—as her seemingly incoherent testimony
suggested—loony; a complete fabrication. Indeed, the prose-
cutor repeatedly made that point in his closing argument: “Is
she being truthful . . . ?”; Vivian’s “story” “makes no sense[ ]
at all[;] [n]o sense at all.”; “She had no knowledge of what
went on that night.”; Vivian’s testimony is a “little charade,”
“truly amazing,” “really amazing,” “fantastic, absolutely fan-
tastic,” “ludicrous . . . ludicrous”; “Come on, Vivian. Come
on, Vivian. It is a good thing you’re out of town, you would
probably be charged with perjury.”; “[T]he defense has been
contrived. The testimony of Vivian Cercy is ridiculous, at
best, perjurious at worst.”
14
During habeas proceedings, Petitioner submitted a signed declaration
from Vincent recanting, at least to some extent, that testimony. We need
not consider the effect of that declaration here.
4998 THOMAS v. CHAPPELL
[9] Thus, it is no surprise that the California Supreme
Court listed as the very first “crucial question[ ]”: “Did Bo
exist?” In re Thomas, 129 P.3d at 57. Indeed, in this proceed-
ing, even Petitioner’s trial counsel testified “that he was
unsure Bo existed.” Id. at 58. The pivotal question, then, is
whether a reasonable investigation would have uncovered evi-
dence that would have corroborated Cercy’s testimony so as
to create a reasonable doubt as to Petitioner’s guilt.
Turley’s testimony would have been the least helpful. He
was not present at Rainbow Village during the murders, but
he could have testified that a tall, thin, blond man who fol-
lowed the Grateful Dead, and whose nickname was “Bo,”
existed.
Cho’s testimony may have been most important. He would
have testified that, on the morning after the murders, in Rain-
bow Village, he had a conversation with a tall, thin, blond
man named “Bo” and another man named Weston. When he
asked them what they had done the previous night (the night
of the murders), Bo responded that either “I” or “we” “went
swimming into the bay last night.” Weston “suddenly jabbed”
Bo with his elbow and “gave him a look like don’t say any-
thing more.” The conversation ended, and Bo and Weston left
the bus. Cho never saw Bo again. Cho’s testimony would
have been extremely helpful to Petitioner’s case: “Bo”
existed; Bo was at Rainbow Village on the night of the mur-
ders; Bo was at the scene of the crime (the bay where the
bodies were dumped) on the night of the murders; Bo and
Weston acted suspiciously when Bo placed them at the scene
of the crime; and Bo left Rainbow Village soon after. “Unless
Bo had some innocent reason to go swimming in San Fran-
cisco Bay at night (and [Respondent] offers none) and an
innocent reason to mention this late-night swim during a con-
versation about the murders (and [Respondent] offers none),
Bo’s statement strongly implicates him in the murders of
[Mary] Gioia and [Greg] Kniffin, whose killer or killers had
THOMAS v. CHAPPELL 4999
dumped their bodies in the bay.” In re Thomas, 129 P.3d at
70 (Kennard, J., dissenting).
Von Wendel would have testified that he discovered a bag
on the porch of his boat on the morning after the murders.
After he heard about the murders later that morning, he
looked in the bag and discovered some mundane items,
including shoes and a colorful serape. Later that day, a tall,
thin, blond man—whom he later learned was named “Bo”—
arrived to reclaim the bag. Bo, who seemed like he was in a
hurry to leave, took the bag and drove out of Rainbow Vil-
lage. Von Wendel’s testimony also would have been
extremely helpful to Petitioner’s case: “Bo” existed; Bo was
at Rainbow Village on the night of the murders; Bo laid claim
to a pair of shoes and a colorful serape, two items that Greg
was wearing the night of the murders but that the police never
recovered; and Bo left Rainbow Village that day, apparently
in a hurry.
[10] In our view, the additional testimony recounted above
—even without the additional testimony of eight more
witnesses—corroborates Cercy’s testimony such that there is
a reasonable probability that the jury would have found a rea-
sonable doubt as to Petitioner’s guilt. Indeed, the jury was
instructed to acquit Petitioner if the evidence was “susceptible
to two reasonable interpretations, one of which points to [Peti-
tioner’s] guilt and the other to his innocence.” There is a rea-
sonable probability that a conscientious jury, presented with
the witnesses corroborating Cercy’s testimony, would find
“reasonable” the interpretation pointing to Petitioner’s inno-
cence. Once the interpretation pointing to Petitioner’s inno-
cence were found, reasonable doubt would exist. See People
v. Wilson, 838 P.2d 1212, 1221-22 (Cal. 1992) (relating rea-
sonable alternative interpretations to reasonable doubt). Even
with no corroboration whatsoever of Cercy’s seemingly crazy
testimony, or of even the existence of “Bo,” the jury struggled
to reach a verdict and requested readbacks related to her testi-
mony. With the additional testimony that the state court found
5000 THOMAS v. CHAPPELL
should have been located by counsel—Bo existed, Bo was
indisputably at Rainbow Village the night of the murders, Bo
and Weston were even at the scene of the crime, Bo and Wes-
ton acted suspiciously the next morning, and Bo and Weston
hastily left Rainbow Village the next day—there is a reason-
able probability that the jury would have acquitted Petitioner.
Cf. Smith v. Cain, 132 S. Ct. 627, 630-31 (2012) (applying the
same “reasonable probability” standard in the context of a
Brady violation and concluding that, even though “the jury
could have disbelieved” evidence contrary to the non-
disclosed evidence, the Court had “no confidence that it
would have done so”).
AFFIRMED.
O’SCANNLAIN, Circuit Judge, dissenting:
The majority finds Strickland prejudice based on two con-
clusions: that the case against Ralph International Thomas
was very close and that the testimony of three would-be wit-
nesses would have been “extremely helpful” in corroborating
the testimony of key defense witness Vivian Cercy. Maj. op.
4995, 4999. Neither conclusion is warranted. The case against
Thomas was stronger than the majority suggests, and the
insubstantial testimony of those three witnesses would not
have sufficiently corroborated Cercy’s testimony or otherwise
undermined the State’s case. Thomas is therefore not entitled
to habeas relief on the basis the district court gave, and I
respectfully dissent.
I
This case was not as close as the majority suggests.
Mary Gioia and Greg Kniffin were killed by gunshot
wounds typical of a high-powered rifle or shotgun, but incon-
THOMAS v. CHAPPELL 5001
sistent with a handgun. Thomas owned a high-powered rifle
that, based on its peculiar features, was likely to have been
used effectively only by someone familiar with it. Thomas
shot the rifle the night before the murders, showing that he
indeed knew how to use it effectively. Moreover, Thomas was
with the victims soon before they were killed and was visibly
angry. His pipe placed him at the crime scene. Thomas
changed clothes in the middle of the night. After the murders,
his rifle mysteriously went missing, yet testimony suggested
that Thomas himself returned the rifle’s case to his car early
in the morning after the murders.
Thomas’s statements and other conduct after the murders
reflected consciousness of his guilt and raised further suspi-
cion: Thomas was able to identify Mary’s body when it
remained partially underwater and before its sex was appar-
ent. After the murders, he asked another Rainbow Village res-
ident to hold his gun-cleaning kit and ammunition. As an
alibi, Thomas claimed to have walked 16.8 miles in the mid-
dle of the night. That was improbable in itself, and more
improbable given that Thomas generally went to bed early
(around 9 p.m.). Indeed, police officers assigned to the areas
Thomas claimed to have been walking did not recall seeing
him. Thomas also gave inconsistent statements to police about
whether his ammunition had been stolen, about his interac-
tions with Mary and Greg, and about his pipes. He said that
he could think of plenty of reasons why someone would want
to murder Mary and Greg, then could not name one.
Not only was the State’s case strong, but Thomas’s defense
—based largely upon Vivian Cercy’s testimony—was weak.
Cercy’s testimony was imprecise, her answers were meander-
ing and undermined her credibility, and her statements con-
flicted with each other and with those of other witnesses.
Cercy described the man she called “Bo” as brown-haired,
then as blond. She testified that the woman she saw arguing
(purportedly Mary Gioia) was wearing “dark brown pants,“
but the pathologist who performed the autopsy on Mary testi-
5002 THOMAS v. CHAPPELL
fied that she wore blue denim shorts and purple pants. One of
the police investigators testified that Cercy reported having
“quite a bit to drink” on August 15, raising doubts about her
perception. Cercy repeatedly testified that she was minding
her own business on the night of the murders and therefore
was not always paying close attention to what she claimed to
have observed. Her testimony was tainted by discussions she
had with others, such as the notoriously unreliable “Stagger
Lee” Andersen, an oft-intoxicated one-time resident of Rain-
bow Village. (Andersen was so unreliable that the district
court did not credit his testimony.) Cercy’s estimates of the
timing of events that night seemed to lack any firm basis. She
could give almost no description of a man who knocked on
her window and spoke with her from what was, apparently,
only a few feet away. Although she said that this man threat-
ened her life, she did not drive herself and her two young
daughters to safety.
In the face of this evidence, it is understandable that six
California Supreme Court justices concluded that the State’s
case would have “established in a reasonable juror’s mind”—
even the mind of one who had heard all the post-conviction
record evidence cited by the majority—“the near certainty”
that Thomas killed Mary and Greg. In re Thomas, 129 P.3d
49, 67 (Cal. 2006).
In casting this case as “close,” maj. op. 4993, the majority
emphasizes that the jury deliberated for nearly five days and
asked for read-backs of testimony, maj. op. 4993-94. But the
majority sidesteps the crucial details. Although the jury delib-
erated for five days, by the third day it asked about the differ-
ence between first- and second-degree murder and by the
fourth day it wanted a hard copy of the jury instruction stating
the difference between first- and second-degree murder.
These “objective clues” (maj. op. 4993) suggest that the jury
was focusing on what kind of murder Thomas committed, not
on whether he killed Mary and Greg at all. (I note that none
of the additional testimony cited by the majority suggests that
THOMAS v. CHAPPELL 5003
Thomas should have been convicted of second-degree murder
rather than first-degree murder; it suggests only—and feebly
—that Thomas was not the killer at all. See infra Part II.) The
majority is not justified in casting aside the California
Supreme Court’s near-unanimous determination that Thomas
was, to a “near certainty,” the murderer.
II
Having pitched the case to be closer than it was, the major-
ity then finds doubt about Thomas’s guilt based on the would-
be testimony of Jong Cheol Cho, Claus von Wendel, and
Randy Turley. Their testimony, the majority maintains, would
have been “extremely helpful” in corroborating Cercy’s testi-
mony and supporting the theory that someone called Bo had
committed the murders. Maj. op. 4998; see id. at 4998-5000.
I cannot agree. To begin with, Cercy’s testimony was
essentially beyond corroboration. It is hard to corroborate tes-
timony so imprecise, at times contradictory, and often incredi-
ble, from someone who—as even the cold record shows—was
not clearheaded, reliable, or perceptive. As Thomas’s current
counsel conceded, “Cercy was hardly a dream witness” and
“her patterns of speech and thought were obviously eccen-
tric.” That understates the matter.
But even assuming that Cercy’s gossamer-thin testimony
was susceptible of corroboration, the three further witnesses’
testimony would not create a reasonable probability of a dif-
ferent guilt-phase outcome. The facts those witnesses may
have offered—that a “Bo” existed, that he said he had gone
swimming in the bay the night of the murders, and that he left
on von Wendel’s boat a bag that contained no murder weapon
and only some mundane, common items—do almost nothing
to sharpen Cercy’s self-refuting, implausible testimony. Nor
do they otherwise undermine the case against Thomas: those
witnesses do not refute any of the evidence against him, such
as the fact that Thomas owned a rifle that would have been
5004 THOMAS v. CHAPPELL
difficult for anyone else to fire and that was quite possibly the
murder weapon.
That a “Bo” may have said that he swam in the bay the
night of the murders or picked up a bag of run-of-the-mill
belongings adds little. Indeed, the swimming-in-the-bay com-
ment may cut against James Bowen’s alleged guilt: If this
“Bo” had killed Mary and Greg, he would presumably have
been more careful than to remark to others, hours after dump-
ing the bodies in the bay, that he had gone swimming there.
Perhaps the more natural conclusion is that “Bo” was being
honest and did not realize that his comment would implicate
him. And whether Cho accurately related “Bo” ’s statement is
open to doubt. When Cho was pressed about a discrepancy
between his sworn declaration and his hearing testimony, he
defended the discrepancy by stating, “English is not my native
language, and therefore I miss all this.” We should not over-
turn a jury verdict in heavy reliance upon a single sentence
reported through an intermediary who may well not have
understood or repeated the sentence accurately.
And the bag on von Wendel’s boat shows almost nothing.
Rainbow Village was a place where people came and went—
where people slept in their cars, on the ground, and in others’
buses. That someone staying there may have left a bag of
shoes, books, a serape, and a driver’s license (and no gun) in
an apparently secure spot hardly merits great suspicion. The
district court said that items in the bag “corresponded to the
shoes and poncho that were missing from Kniffin’s body
when it was found.” But Randy Turley testified that “Bo”
liked to wear serapes. And it is no surprise that “Bo” would
have an extra pair of shoes in a bag containing his belongings.
Von Wendel’s testimony—about an article of clothing com-
monly worn by “Bo” (a serape) and an article commonly
worn by most American adults (shoes)—does not corroborate
Cercy or undermine the other evidence of guilt.
THOMAS v. CHAPPELL 5005
Finally, I do not understand why the majority disregards the
rebuttal testimony of Vincent Johnson. On rebuttal, the prose-
cutor asked Johnson, “[W]hat exactly did [Vivian Cercy] tell
you regarding anything she may have seen [the night of the
murders]?” Johnson replied, “She told me, basically, that
everything she said was, was—she was told to say by [Rain-
bow Village resident and Cercy’s on-and-off boyfriend] Harry
Shorman, and that she basically hadn’t seen anything, hadn’t
seen anything.” Johnson’s testimony makes it all the more dif-
ficult to imagine a different result in this case. Even if the
three additional witnesses would have established that a “Bo”
existed and that Cercy had not “made him up,” Johnson’s
rebuttal decisively supported the prosecution’s view that she
was not testifying credibly and was acting as a mouthpiece for
eccentric grandstander Harry Shorman.1
III
In sum, the evidence on which the majority relies—Cercy’s
narrative, Turley’s confirmation of a “Bo” ’s existence and
description, Cho’s testimony that “Bo” made a “swimming
into the bay” comment, and the bag on von Wendel’s boat—
when set against the actual case against Thomas, does not
“undermine confidence in the outcome” of his guilt-phase
trial. Strickland v. Washington, 466 U.S. 668, 694 (1984).
I would reverse the district court’s judgment granting a writ
of habeas corpus.
1
The majority says that, during habeas proceedings, Thomas submitted
a declaration in which Johnson at least partially recanted his testimony.
Maj. op. 4997 n.14. The declaration is more equivocal than the majority
suggests and, in any event, Johnson testified later that he was not lying
when he testified that Cercy had told him that “everything she said was”
what she “was told to say by Harry Shorman” and that “she basically
hadn’t seen anything.” The majority states that it “need not consider the
effect of that declaration here.” Id. But if the majority “need not consider”
that later declaration, it is unclear why the majority is justified in effec-
tively disregarding Johnson’s rebuttal testimony in considering Strickland
prejudice.