NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 25 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RICARDO VELASQUEZ, No. 17-17415
Petitioner-Appellant, D.C. No. 1:15-cv-01288-AWI-JLT v.
ROSEMARY NDOH, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding
Argued and Submitted December 6, 2019 San Francisco, California
Before: W. FLETCHER and MILLER, Circuit Judges, and PREGERSON, ** District Judge.
The parties are familiar with the facts of this case, which we repeat here only
to the extent necessary to explain our decision. Petitioner Ricardo Velasquez
appeals the district court’s denial of his petition for writ of habeas corpus. We
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. have jurisdiction pursuant to 28 U.S.C. § 2253, and, having reviewed the district
court’s decision de novo, we reverse the district court’s denial of habeas relief and
remand for an evidentiary hearing. See Campbell v. Rice, 408 F.3d 1166, 1169
(9th Cir. 2005) (en banc).
1. We must defer to the state court’s decision unless that decision was (1)
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court,” or (2) “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d); see also Harrington v. Richter, 562
U.S. 86, 98 (2011).
We will not defer to state court factual findings “where the fact-finding
process itself is defective.” Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir 2004),
overruled on other grounds by Murray v. Schriro, 745 F.3d 984, 999-1000 (9th
Cir. 2014).1 “We have held repeatedly that where a state court makes factual
findings without an evidentiary hearing or other opportunity for the petitioner to
present evidence, the fact-finding process itself is deficient, and not entitled to
deference.” Hurles v. Ryan, 752 F.3d 768, 790 (9th Cir. 2014) (internal quotation
1 Contrary to Respondent’s argument, Brumfield v. Cain, 576 U.S. 305 (2015), did not reject the approach set forth by this Court in Taylor. Indeed, the Supreme Court found the state court’s factual determinations unreasonable under 28 U.S.C. § 2254(d)(2) precisely because the state court denied a petitioner’s request for an evidentiary hearing. Brumfield, 567 U.S. at 314, 317, 320.
2 17-17415 marks omitted); see also Taylor, 366 F.3d at 1001 (“If, for example, a state court
makes evidentiary findings without holding a hearing and giving petitioner an
opportunity to present evidence, such findings clearly result in an ‘unreasonable
determination’ of the facts.”). Although in some cases the record may be sufficient
to establish that a petitioner’s claim has no merit, this is not such a case. See Perez
v. Rosario, 459 F.3d 943, 950 (9th Cir. 2006). In light of the evidence that trial
counsel failed to conduct an investigation of Adan Fernandez as the shooter, failed
to conduct an independent analysis of eighteen fingerprints lifted from the Jeep,
and failed to confirm whether the police completed any fingerprint tests, the state
court’s refusal to grant Petitioner an evidentiary hearing resulted in a decision
based upon an unreasonable determination of the facts. We therefore evaluate
Petitioner’s claim de novo. Hurles, 752 F.3d at 778.
2. Ineffective assistance of counsel requires reversal of a conviction where (1)
counsel’s performance fell below an objective standard of reasonableness and (2)
that deficient performance prejudiced the defense, such that there is a “reasonable
probability that . . . the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687, 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694.
Here, Petitioner alleges that although he informed trial counsel that
Fernandez was the shooter, trial counsel never investigated Fernandez because
3 17-17415 Fernandez was dead by the time Petitioner went to trial. “[C]ounsel has a duty to
make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at 691. “[S]trategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” Id. at 690-91; see also Rompilla v. Beard, 545 U.S. 374, 383
(2005) (“[R]easonably diligent counsel may draw a line when they have good
reason to think further investigation would be a waste.”) (emphasis added). If, as
Petitioner alleges, trial counsel decided not to investigate Fernandez’s role in the
shooting solely because Fernandez was dead, that decision was not objectively
reasonable.
Petitioner has also alleged facts that suggest he was prejudiced by trial
counsel’s failure to investigate Fernandez. Three different declarants stated that
Fernandez bragged, on multiple occasions, that he was the shooter and that he got
away with it. Each of the declarants further stated that he would have testified at
trial if asked to do so. Fernandez’s statements likely would have been admitted as
statements against interest. See Cal. Evid. Code § 1230. Had the jury heard
evidence of Fernandez’s repeated boasts, there is at least a reasonable probability
that the jury would not have found that Petitioner was the shooter, and that the
result of the proceeding would have been different.
4 17-17415 3. Petitioner has also alleged facts that, if true, support his fingerprint-based
ineffective assistance claim. Although trial counsel appears to have made pro-
forma discovery requests for the results of any fingerprint analyses, Petitioner
alleges that counsel did not make a serious attempt to obtain those test results, and
made no effort to perform an independent analysis of several fingerprints obtained
from the Jeep. “While an attorney need not pursue an investigation that would be
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 25 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
RICARDO VELASQUEZ, No. 17-17415
Petitioner-Appellant, D.C. No. 1:15-cv-01288-AWI-JLT v.
ROSEMARY NDOH, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding
Argued and Submitted December 6, 2019 San Francisco, California
Before: W. FLETCHER and MILLER, Circuit Judges, and PREGERSON, ** District Judge.
The parties are familiar with the facts of this case, which we repeat here only
to the extent necessary to explain our decision. Petitioner Ricardo Velasquez
appeals the district court’s denial of his petition for writ of habeas corpus. We
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. have jurisdiction pursuant to 28 U.S.C. § 2253, and, having reviewed the district
court’s decision de novo, we reverse the district court’s denial of habeas relief and
remand for an evidentiary hearing. See Campbell v. Rice, 408 F.3d 1166, 1169
(9th Cir. 2005) (en banc).
1. We must defer to the state court’s decision unless that decision was (1)
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court,” or (2) “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d); see also Harrington v. Richter, 562
U.S. 86, 98 (2011).
We will not defer to state court factual findings “where the fact-finding
process itself is defective.” Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir 2004),
overruled on other grounds by Murray v. Schriro, 745 F.3d 984, 999-1000 (9th
Cir. 2014).1 “We have held repeatedly that where a state court makes factual
findings without an evidentiary hearing or other opportunity for the petitioner to
present evidence, the fact-finding process itself is deficient, and not entitled to
deference.” Hurles v. Ryan, 752 F.3d 768, 790 (9th Cir. 2014) (internal quotation
1 Contrary to Respondent’s argument, Brumfield v. Cain, 576 U.S. 305 (2015), did not reject the approach set forth by this Court in Taylor. Indeed, the Supreme Court found the state court’s factual determinations unreasonable under 28 U.S.C. § 2254(d)(2) precisely because the state court denied a petitioner’s request for an evidentiary hearing. Brumfield, 567 U.S. at 314, 317, 320.
2 17-17415 marks omitted); see also Taylor, 366 F.3d at 1001 (“If, for example, a state court
makes evidentiary findings without holding a hearing and giving petitioner an
opportunity to present evidence, such findings clearly result in an ‘unreasonable
determination’ of the facts.”). Although in some cases the record may be sufficient
to establish that a petitioner’s claim has no merit, this is not such a case. See Perez
v. Rosario, 459 F.3d 943, 950 (9th Cir. 2006). In light of the evidence that trial
counsel failed to conduct an investigation of Adan Fernandez as the shooter, failed
to conduct an independent analysis of eighteen fingerprints lifted from the Jeep,
and failed to confirm whether the police completed any fingerprint tests, the state
court’s refusal to grant Petitioner an evidentiary hearing resulted in a decision
based upon an unreasonable determination of the facts. We therefore evaluate
Petitioner’s claim de novo. Hurles, 752 F.3d at 778.
2. Ineffective assistance of counsel requires reversal of a conviction where (1)
counsel’s performance fell below an objective standard of reasonableness and (2)
that deficient performance prejudiced the defense, such that there is a “reasonable
probability that . . . the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687, 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694.
Here, Petitioner alleges that although he informed trial counsel that
Fernandez was the shooter, trial counsel never investigated Fernandez because
3 17-17415 Fernandez was dead by the time Petitioner went to trial. “[C]ounsel has a duty to
make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at 691. “[S]trategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” Id. at 690-91; see also Rompilla v. Beard, 545 U.S. 374, 383
(2005) (“[R]easonably diligent counsel may draw a line when they have good
reason to think further investigation would be a waste.”) (emphasis added). If, as
Petitioner alleges, trial counsel decided not to investigate Fernandez’s role in the
shooting solely because Fernandez was dead, that decision was not objectively
reasonable.
Petitioner has also alleged facts that suggest he was prejudiced by trial
counsel’s failure to investigate Fernandez. Three different declarants stated that
Fernandez bragged, on multiple occasions, that he was the shooter and that he got
away with it. Each of the declarants further stated that he would have testified at
trial if asked to do so. Fernandez’s statements likely would have been admitted as
statements against interest. See Cal. Evid. Code § 1230. Had the jury heard
evidence of Fernandez’s repeated boasts, there is at least a reasonable probability
that the jury would not have found that Petitioner was the shooter, and that the
result of the proceeding would have been different.
4 17-17415 3. Petitioner has also alleged facts that, if true, support his fingerprint-based
ineffective assistance claim. Although trial counsel appears to have made pro-
forma discovery requests for the results of any fingerprint analyses, Petitioner
alleges that counsel did not make a serious attempt to obtain those test results, and
made no effort to perform an independent analysis of several fingerprints obtained
from the Jeep. “While an attorney need not pursue an investigation that would be
fruitless, much less one that might be harmful to the defense, the reverse is also
true: the obligation to investigate, recognized by Strickland, exists when there is no
reason to believe doing so would be fruitless or harmful.” Browning v. Baker, 875
F.3d 444, 473 (9th Cir. 2017) (internal alteration, citation, and quotation omitted).
Here, at least insofar as alleged by Petitioner, there was no justification for
counsel’s alleged failure to pursue fingerprint evidence. If this allegation is true,
then counsel’s decision not to investigate was not objectively reasonable.
Petitioner also alleges facts that may, if true, establish prejudice. Although it
remains unclear what, if anything, fingerprint analyses would reveal, Petitioner
asserts that fingerprint testing could help establish that he was the driver and not
the shooter. Petitioner’s argument would be bolstered if, for example, prints on the
steering wheel belonged to him, or prints on or near the sunroof belonged to
someone else. A jury presented with such evidence could well have found that
Petitioner was not the shooter.
5 17-17415 4. Petitioner acknowledges that, without the results of fingerprint testing, he
cannot conclusively demonstrate that he was prejudiced by the lack of fingerprint
evidence. With respect to counsel’s alleged failure to investigate Fernandez as the
shooter, we cannot conclude, on the record currently before us, that trial counsel,
notwithstanding his statement to Petitioner, actually failed to investigate
Fernandez, or that any such failure was actually motivated by the (insufficient) fact
that Fernandez was deceased. Petitioner has, however, raised a colorable claim for
relief with respect to both theories of ineffective assistance of counsel. The proper
remedy, therefore, is a remand to the district court for an evidentiary hearing.
Having determined that the state court’s decision was based upon an unreasonable
determination of the facts, we are not constrained by the record before the state
court, and may consider evidence presented for the first time in federal court. 2
Hurles, 752 F.3d at 778 (citing Cullen v. Pinholster, 563 U.S. 170, 185-86 (2011)).
2 Although 28 U.S.C. § 2254(e)(2) might bar an evidentiary hearing where a petitioner fails to develop the factual basis of his claim in state court, such is not the case here. “[F]ailure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432 (2000). “Diligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law.” Id.; see also Hurles, 752 F.2d at 791 (“A petitioner who has previously sought and been denied an evidentiary hearing has not failed to develop the factual basis of his claim.”).
6 17-17415 Because Petitioner, through no fault of his own, has never been afforded an
opportunity to develop the factual record, we must remand to the district court for
an evidentiary hearing. Earp v. Ornoski, 431 F.3d 1158, 1167 (9th Cir. 2005) (“In
other words, a hearing is required if: (1) the defendant has alleged facts that, if
proven, would entitle him to habeas relief, and (2) he did not receive a full and fair
opportunity to develop those facts.”) (internal quotation and alterations omitted) ;
see also Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir. 2001) (“In these
circumstances, a petition may be dismissed without a hearing only when it consists
solely of conclusory, unsworn statements unsupported by any proof or offer
thereof.”); cf. Hurles, 752 F.3d at 792 (“Because [the petitioner’s] allegation . . .
would, if proved, entitle him to federal habeas relief, the district court abused its
discretion in denying this claim without an evidentiary hearing.”).
Accordingly, we reverse the district court’s denial of the habeas petition and
remand for an evidentiary hearing, or other further factual development as the
district court sees fit.
REVERSED AND REMANDED.
7 17-17415