Andre Marcus Bragg v. Warden Galaza

253 F.3d 1150, 2001 Cal. Daily Op. Serv. 4823, 2001 Daily Journal DAR 5945, 2001 U.S. App. LEXIS 12402, 2001 WL 641096

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 12, 2001
• Docket: 99-16636
• Status: Published

Opinion

ORDER

This court’s opinion, filed March 12, 2001, is amended as follows:

1. On page 3110 of the slip, the first sentence of the second full paragraph reads:

Here, while Bragg appealed his conviction in the state court alleging that facts on the record established ineffective assistance of counsel, he never moved for an evidentiary hearing to resolve any factual ambiguities.

The foregoing sentence should be replaced with the following sentence:

Here, while Bragg appealed his conviction in the state court alleging that facts on the record established ineffective assistance of counsel, he never moved for an evidentiary hearing in the trial court to resolve any factual ambiguities.

2. On page 3111 of the slip, the last sentence before the Conclusion reads:

Despite concerns about gaps in the record, we hold that AEDPA in this case precludes us from remanding for an evi-dentiary hearing.

The foregoing sentence should be replaced with the following sentences:

Diligence would require at least one step or the other to develop the factual basis of his claim. Bragg made no such efforts. Despite concerns about gaps in the record, we hold that AEDPA in this case precludes us from remanding for an evidentiary hearing.

With these amendments, the petition for rehearing dated March 21, 2001, is DENIED.

It is so ORDERED.