Gonzalez v. Caden

357 F. App'x 900

Opinion

MEMORANDUM

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California state prisoner Andres Gonzalez appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we vacate and remand.

Gonzalez contends that his defense counsel was ineffective by failing to present the testimony of Dagoberto Cardona. We vacate the district court’s denial of the habe-as petition and remand to the district court to hold an evidentiary hearing and rule on the merits of Gonzalez’s ineffective assistance of counsel claim.¹ See Scott v. Schri-ro, 567 F.3d 573, 584 (9th Cir.2009) (per curiam) (remanding to district court to conduct an evidentiary hearing); see also Houston v. Schomig, 533 F.3d 1076, 1083 n. 4 (9th Cir.2008) (remanding sua sponte).

VACATED; REMANDED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.

1 . We note that defense counsel’s performance was far from stellar. See, e.g., In re Vargas, 83 Cal.App.4th 1125, 100 Cal.Rptr.2d 265 (Ct. App.2000) (enumerating defense counsel’s performance in past cases).