When the Constitution was written, the authors from the thirteen states would never have approved federal court review of their own state court decisions. Only after a century of constitutional enactment did the U.S. Supreme Court discover habeas corpus enabling federal review of state criminal cases. The 9th Circuit continues to rule repeatedly on state court cases ignoring or mis applying  Supreme Court decisions (for a list of decisions reversing the 9th Circuit, see Deck v. Jenkins,.   Hardy is no exception.

Hardy v. Chappell, a conviction affirmed by the California Supreme Court, state habeas courts and the federal district court judge was reversed by a  2-1 panel in another unbelievable and erroneous decision.  The panel cited three of their own cases reversed by the Supreme Court.

The decision in Hardy was nothing more then an AEDPA case, but the author (who probably wrote the opinion) is a judge who has never tried a criminal case, never affirmed a death penalty case, ignores Supreme Court opinion and repeatedly overrules the state supreme courts. The decision engages in an academic linguistic and incomprehensible opinion ruminating on what jurors “could have done”, or “might have done.” The 9th Circuit judge (senior) completely misunderstands jurors who watch witnesses and evaluate them.  Ninth Circuit Circuit judges read a cold transcript with no understanding of witness demeanor and attitude.

In order to avoid AEDPA ;the majority  come up with a few thoughts without any basis.  This case, as noted by the minority judge, is another 9th Circuit game playing, and the U.S. Supreme Court should strip that court from hearing habeas corpus of state court cases.  Thanks to the majority holding in Hardy, the prosecution is unlikely to ever to re try this case.