NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 22 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL LAMAR ROSE, No. 15-56950
Petitioner-Appellant, D.C. No. 5:11-cv-01654-MMM-JPR v.
A. HEDGPETH; XAVIER BECERRA, MEMORANDUM* Attorney General,
Respondents-Appellees.
Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding
Argued and Submitted May 14, 2018 Pasadena, California
Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.
Michael Lamar Rose appeals from the denial of his petition for a writ of
habeas corpus. As the parties are familiar with the facts, we do not recount them
here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse
in part, and remand with instructions.
1. Denial-of-Counsel Claim. Contrary to petitioner’s argument, the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. California court of appeal adjudicated his denial-of-counsel claim “on the merits.”
28 U.S.C. § 2254(d). Petitioner’s opening brief in that court featured two
arguments, the latter of which asserted the constructive denial of counsel during
post-trial proceedings. The court of appeal’s opinion also addressed petitioner’s
appeal in two parts, indicating that the court recognized that petitioner was
asserting two distinct arguments, the second of which related to the denial of
counsel, and that it sought to address each of those arguments in turn. The court of
appeal’s citation, moreover, to California case law premised on the Sixth
Amendment right to counsel, see People v. Smith, 863 P.2d 192, 196–99 (Cal.
1993) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)), indicates that the court
“understood itself to be deciding a question with federal constitutional
dimensions,” Johnson v. Williams, 568 U.S. 289, 305 (2013), and thus that it
resolved petitioner’s claim “on the merits,” 28 U.S.C. § 2254(d).
The U.S. Supreme Court has never held that a post-trial, pre-appeal motion
for a new trial is a “critical stage” to which the Sixth Amendment right to counsel
applies. United States v. Cronic, 466 U.S. 648, 659 (1984). There being no such
precedent, petitioner’s argument that the California court of appeal’s decision was
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), necessarily fails. See, e.g., Marshall v. Rodgers, 569 U.S. 58, 61–64
2 (2013) (per curiam); Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).
2. Ineffective-Assistance Claim. Because respondents failed to “raise the
issue of procedural default in [the] district court or on appeal,” they have forfeited
any argument that petitioner’s ineffective-assistance claim is procedurally
defaulted. Chaker v. Crogan, 428 F.3d 1215, 1220 (9th Cir. 2005). 28 U.S.C.
§ 2254(d) does not apply, moreover, because petitioner did not raise his standalone
ineffective-assistance claim until his second state habeas petition and the
California superior court order denying that petition stated only that it was “a serial
petition alleging no new facts.” We must therefore review petitioner’s ineffective-
assistance claim de novo. See James v. Ryan, 733 F.3d 911, 914 (9th Cir. 2013);
see also Fox v. Johnson, 832 F.3d 978, 985–86 (9th Cir. 2016).
Taking his specific factual allegations as true, petitioner has pleaded a
colorable ineffective-assistance claim in two respects. See Schriro v. Landrigan,
550 U.S. 465, 474 (2007). First, trial counsel may have been deficient in declining
to view, investigate, and attempt to introduce an alleged video of an interview in
which petitioner’s alleged victim Denmon purportedly admitted to framing
petitioner. Second, trial counsel may have been deficient in declining to call
Charlene Bell and Africa Bolden, who petitioner avers would have testified that
Denmon admitted, among other things, that “he was allowing [petitioner] to
possibly spend his life in prison” to retaliate against one of petitioner’s co-
3 defendants. The record does not disclose trial counsel’s reasons, strategic or
otherwise, for not investigating and not attempting to introduce either the alleged
video or Denmon’s purported admission to Bell and Bolden of having framed
petitioner.1 See Strickland v. Washington, 466 U.S. 668, 690–91 (1984); Howard
v. Clark, 608 F.3d 563, 573 n.4 (9th Cir. 2010); see also Duncan v. Ornoski, 528
F.3d 1222, 1237 n.7 (9th Cir. 2008).
Petitioner makes a colorable argument, moreover, that there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result . . . would have
been different.” Strickland, 466 U.S. at 694. As the only witness who could have
seen whether petitioner was either a willing participant in the crime or merely
acting under duress, Denmon’s credibility was a central issue in petitioner’s trial,
and evidence that he had admitted to having framed petitioner to retaliate against
petitioner’s co-defendant would have undercut Denmon’s credibility. Moreover,
the jury sent the trial court seven notes seeking, among other things, clarification as
1 Petitioner has otherwise failed to plead a colorable ineffective-assistance claim: “the record refutes” his theory that trial counsel was deficient in refusing to call Peggy Ramos and Laquanda Rose to testify that associates of petitioner’s co- defendant Donald Shorts intimidated them at their home after the murder-robbery. Landrigan, 550 U.S. at 474. Counsel’s explanations at the Marsden hearing for his refusal to call these witnesses—that evidence regarding petitioner’s reasons for his out-of-state travel may have evidenced consciousness of guilt, thereby undermining his duress defense, and that calling Ramos and Rose may have prompted damaging rebuttal testimony by the prosecution—were well within the range of sound trial strategy. See Brodit v. Cambra, 350 F.3d 985, 992–93 (9th Cir. 2003).
4 to aiding-and-abetting liability; a playback of petitioner’s police interview; and
readbacks of Denmon’s testimony regarding his and petitioner’s movements before
the crime.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 22 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL LAMAR ROSE, No. 15-56950
Petitioner-Appellant, D.C. No. 5:11-cv-01654-MMM-JPR v.
A. HEDGPETH; XAVIER BECERRA, MEMORANDUM* Attorney General,
Respondents-Appellees.
Appeal from the United States District Court for the Central District of California Margaret M. Morrow, District Judge, Presiding
Argued and Submitted May 14, 2018 Pasadena, California
Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.
Michael Lamar Rose appeals from the denial of his petition for a writ of
habeas corpus. As the parties are familiar with the facts, we do not recount them
here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse
in part, and remand with instructions.
1. Denial-of-Counsel Claim. Contrary to petitioner’s argument, the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. California court of appeal adjudicated his denial-of-counsel claim “on the merits.”
28 U.S.C. § 2254(d). Petitioner’s opening brief in that court featured two
arguments, the latter of which asserted the constructive denial of counsel during
post-trial proceedings. The court of appeal’s opinion also addressed petitioner’s
appeal in two parts, indicating that the court recognized that petitioner was
asserting two distinct arguments, the second of which related to the denial of
counsel, and that it sought to address each of those arguments in turn. The court of
appeal’s citation, moreover, to California case law premised on the Sixth
Amendment right to counsel, see People v. Smith, 863 P.2d 192, 196–99 (Cal.
1993) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)), indicates that the court
“understood itself to be deciding a question with federal constitutional
dimensions,” Johnson v. Williams, 568 U.S. 289, 305 (2013), and thus that it
resolved petitioner’s claim “on the merits,” 28 U.S.C. § 2254(d).
The U.S. Supreme Court has never held that a post-trial, pre-appeal motion
for a new trial is a “critical stage” to which the Sixth Amendment right to counsel
applies. United States v. Cronic, 466 U.S. 648, 659 (1984). There being no such
precedent, petitioner’s argument that the California court of appeal’s decision was
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), necessarily fails. See, e.g., Marshall v. Rodgers, 569 U.S. 58, 61–64
2 (2013) (per curiam); Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).
2. Ineffective-Assistance Claim. Because respondents failed to “raise the
issue of procedural default in [the] district court or on appeal,” they have forfeited
any argument that petitioner’s ineffective-assistance claim is procedurally
defaulted. Chaker v. Crogan, 428 F.3d 1215, 1220 (9th Cir. 2005). 28 U.S.C.
§ 2254(d) does not apply, moreover, because petitioner did not raise his standalone
ineffective-assistance claim until his second state habeas petition and the
California superior court order denying that petition stated only that it was “a serial
petition alleging no new facts.” We must therefore review petitioner’s ineffective-
assistance claim de novo. See James v. Ryan, 733 F.3d 911, 914 (9th Cir. 2013);
see also Fox v. Johnson, 832 F.3d 978, 985–86 (9th Cir. 2016).
Taking his specific factual allegations as true, petitioner has pleaded a
colorable ineffective-assistance claim in two respects. See Schriro v. Landrigan,
550 U.S. 465, 474 (2007). First, trial counsel may have been deficient in declining
to view, investigate, and attempt to introduce an alleged video of an interview in
which petitioner’s alleged victim Denmon purportedly admitted to framing
petitioner. Second, trial counsel may have been deficient in declining to call
Charlene Bell and Africa Bolden, who petitioner avers would have testified that
Denmon admitted, among other things, that “he was allowing [petitioner] to
possibly spend his life in prison” to retaliate against one of petitioner’s co-
3 defendants. The record does not disclose trial counsel’s reasons, strategic or
otherwise, for not investigating and not attempting to introduce either the alleged
video or Denmon’s purported admission to Bell and Bolden of having framed
petitioner.1 See Strickland v. Washington, 466 U.S. 668, 690–91 (1984); Howard
v. Clark, 608 F.3d 563, 573 n.4 (9th Cir. 2010); see also Duncan v. Ornoski, 528
F.3d 1222, 1237 n.7 (9th Cir. 2008).
Petitioner makes a colorable argument, moreover, that there is a “reasonable
probability that, but for counsel’s unprofessional errors, the result . . . would have
been different.” Strickland, 466 U.S. at 694. As the only witness who could have
seen whether petitioner was either a willing participant in the crime or merely
acting under duress, Denmon’s credibility was a central issue in petitioner’s trial,
and evidence that he had admitted to having framed petitioner to retaliate against
petitioner’s co-defendant would have undercut Denmon’s credibility. Moreover,
the jury sent the trial court seven notes seeking, among other things, clarification as
1 Petitioner has otherwise failed to plead a colorable ineffective-assistance claim: “the record refutes” his theory that trial counsel was deficient in refusing to call Peggy Ramos and Laquanda Rose to testify that associates of petitioner’s co- defendant Donald Shorts intimidated them at their home after the murder-robbery. Landrigan, 550 U.S. at 474. Counsel’s explanations at the Marsden hearing for his refusal to call these witnesses—that evidence regarding petitioner’s reasons for his out-of-state travel may have evidenced consciousness of guilt, thereby undermining his duress defense, and that calling Ramos and Rose may have prompted damaging rebuttal testimony by the prosecution—were well within the range of sound trial strategy. See Brodit v. Cambra, 350 F.3d 985, 992–93 (9th Cir. 2003).
4 to aiding-and-abetting liability; a playback of petitioner’s police interview; and
readbacks of Denmon’s testimony regarding his and petitioner’s movements before
the crime. The jury was also deadlocked ten-to-two or eleven-to-one as to
petitioner even after it had already convicted his co-defendants. These
circumstances suggest that petitioner’s case was close. Petitioner has therefore
pleaded “a colorable claim [to relief].” Scott v. Schriro, 567 F.3d 573, 583 (9th
Cir. 2009) (per curiam) (alteration in original).
Contrary to respondents’ argument, petitioner has not “failed to develop the
factual basis of [his ineffective-assistance] claim in State court proceedings” such
that 28 U.S.C. § 2254(e)(2) governs his eligibility for an evidentiary hearing.
Because the state courts denied petitioner’s second state habeas petition “without
ordering formal pleadings,” petitioner “never reached the stage of the [state
habeas] proceedings at which an evidentiary hearing should be requested” and thus
“has not shown a lack of diligence at the relevant stages of the state court
proceedings . . . .” Horton v. Mayle, 408 F.3d 570, 582 n.6 (9th Cir. 2005)
(internal quotation marks omitted) (citing Williams v. Taylor, 529 U.S. 420, 437
(2000)). Moreover, petitioner expressly requested an evidentiary hearing in the
California court of appeal. See Williams, 529 U.S. at 437. Thus, 28 U.S.C.
§ 2254(e)(2) does not apply.
Because 28 U.S.C. § 2254(e)(2) does not bar a hearing; because petitioner
5 has “raise[d] a colorable claim to relief”; and because “there has not been a state or
federal hearing on” his ineffective-assistance claim, “we must remand to the
district court for an evidentiary hearing.” Scott, 567 F.3d at 583 (brackets and
internal quotation marks omitted); see also Townsend v. Sain, 372 U.S. 293, 312–
13 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1
(1992).
3. Accordingly, although we affirm the district court’s denial of relief as to
petitioner’s denial-of-counsel claim, we reverse the denial of relief as to
petitioner’s Strickland claim and remand the case for an evidentiary hearing at
which petitioner’s colorable allegations of ineffective assistance may be subjected
to proof. Once the factual record has been fully developed, the district court
should consider in the first instance whether petitioner has demonstrated
entitlement to habeas relief. We express no opinion on that question here.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.