*3 REINHARDT, Before NOONAN, and FERNANDEZ, Judges. Circuit Opinion by Judge REINHARDT; Dissent Judge FERNANDEZ. OPINION REINHARDT, Circuit Judge. early In the morning hours of November 22, 1986, James Hampton, a member of the “Bloods” gang, street shot killed front of the Pizza and Deli in A/C Sacramento, California. There were somewhere between 50 patrons and 200 the location night, many of whom drinking were and partying outside the establishment at the time the shots were rely expert and to on the testimo- were mem- instead Among those fired.1 “Bloods,” “Crips” thought of ny might bers both counsel establish Vic- gangs. rival street March his that Rios was not conscious of actions charged Rios and John Lewis tor shooting. at the time of the joint At their Hampton’s murder. a mis- presented court state The Superior California Court Rios present- defense2 while
identification
that Rios’s counsel failed to
agreed
reason
jury-
defense.3
ed
unconsciousness
investigate the case
ably
as a
Lewis,
guilty
but found
acquitted
result,
deficient,
performance
had been
personal
murder with the
second-degree
but it
that Rios
concluded
entitled
violation
California
use of
firearm
to habeas relief because there was not a
*4
187,189,
§§
and 12022.5.After
Penal Code
probability that the outcome
reasonable
of
trial, the
motion for a nеw
denying Rios’s
his trial would have been different had
years
to fifteen
judge
him
trial
sentenced
provided
legal
counsel
effective
services.
murder
and a two-
to life for the
conviction
pursued
his ineffective assistance
for the
of a
sentence
use
year consecutive
claim
in the
filing
petitions
state habeas
firearm.
Appeal
Court of
and the Califor
California
conviction, but
di-
his
his
appealed
Court,
Supreme
nia
were sum
He then filed
appeals
rect
were denied.
He then
marily denied.
filed
federal
petition in
corpus
the Califor-
state habeas
in the
petition
habeas
district court on
inter alia
Superior
alleging
nia
Court
9,1994.
court,
February
That
after order
constitutionally
inef-
trial counsel
his
deposition
eyewitness
the
of an
and
ing
the
investigate
he failed to
fective because
to
addi
expanding the record
include some
potential eyewit-
of
case. Of the dozens
records,
and
the
tional declarations
denied
nesses,
only one
counsel interviewed
Rios’s
14,
petition
appeals
on
2001. Rios
March
offer
evi-
determining not to
before
decision.4
shoot
that Rios
not
dence
varying
of
number
as a result of a concussiоn. Under California
were
accounts
1. There
law,
people
at the time of the
criminal
an individual "who committed
of
location
being
shooting.
charged
Two witnesses testified that there
the act
without
conscious
approximately
people
One
criminally
were
200
there.
is
liable. Cal.Penal
thereof”
not
26(4).
witness
that there were at least 50.
testified
§
"can
Code
Such unconsciousness
estimated that there was
subject
Another witness
physically
...
acts
exist
where
people
60
at first but that it
time,
crowd of 50 to
not,
conscious of act-
fact but is
grown
people
probably
359,
when
Newton,
had
100
People
Cal.App.3d
ing.”
v.
8
be-
were fired. Two other witnesses
shots
376,
(1970).
Cal.Rptr.
Rios's defense
394
milling
people
over
lieved that
Penal Code section.
was based on the
shooting.
time of
about at the
Anti-Terrorism and Effective
4.Because
is,
prac-
for all
2. A
defense
misidentification
("AEDPA") and its
Penalty Act of 1996
Death
purposes, the
as an actual inno-
tical
same
apply only
§
U.S.C. 2254
amendments to 28
short,
argued that
Lewis
cence defense.
24, 1996,
petitions
April
federal
filed after
prosecu-
that the
he was not the
shooter
petition under
we do not review Rios’s habeas
prove
evidence to
tion did not have sufficient
of review.
deferential standard
AEDPA'smore
beyond a reasonable doubt.
otherwise
320, 327,
Murphy,
v.
521 U.S.
See Lindh
(1997);
v.
S.Ct.
The three women testified to Carter also testified to hearing twenty- varying hearing number of shots fired two shots coming from different directions. Hayden that night. claimed to have heard She stated that she saw a man named five, although a total of police she told the “Mario” fire a weapon and believed that a in her initial statement she had heard man named Robert Wilson also fired his nine and later told a detective that she shotgun. had She also “lightskinned saw a nine, 22. Parrish said heard she heard black guy” gun with a night. She also Taylor reported hearing six. heard shots coming from the area where guys,” “L.A. who were members of the also fifteen-year-old State called Crips gang, were standing. Carter, Debоrah a witness who was at the night scene on the of the shooting. Carter The fifth eyewitness for the State was testified that she knew Rios from the Sherri Herndon. She was with some neighborhood. She testified that she friends in front of the deli night on the drank a lot of alcohol night the shooting. Herndon testified that she and, although she glasses needed drinking been beer that nearsightedness, because of her she was described herself as “almost drunk.” She not wearing glasses at the time.7 She Hampton’s witnessed attack on Rios while testified that she saw Hampton attack the Rios was in car. Herndon testified driver of car that she believed belonged that she saw approximately three feet to Rios. She admitted that she could not just front of Hampton before the shoot- see clearly person car, in the but she ing began, but she never saw Rios holding assumed that it was Rios because she rec- a gun. She testified that she saw two *7 ognized the car. pairs of men approaching Hampton just moments before he was shot. Rios inwas respect With to shooting, the Carter ini- one of these two groups. She was not able tially testified that she saw Rios shoot identify to the man who was with Rios However, she then admitted on except that she knew that he was black. the stand that she did not actually see him She thought the pair other of men were so; rather, do she heard shots and then Hampton’s friends. saw someone who resembled Rios standing Hampton’s over body on ground. 'the She Herndon testified that she heard ap- also testified that she did not form her proximately three to four shots fired but opinion that Rios was the shooter she ob- did not see who shot Hampton. Just be- served until the next morning. She shot, stated fore Hampton however, was she tes- 6. Taylor disappeared Yvette giving after her eyesight Carter's extremely poor. was She preliminary hearing testimony wearing glasses was not during could not her Lewis, be at began. located when the trial trial and not was able to see the co- defendant, clearly from the witness stand. more, that she did not see the she testified up. drove Bonneville a white tified at directly Hamp- fire person light-skinned trunk from the shotgun got a The driver ton, gener- him rather saw shoot the but stated Hampton.8 She it at and fired was vicinity Hampton as al Robert she saw shooting began, the after ground. to the falling then saw shotgun and shoot Wilson ground. the fall to heard over that she Carter estimated that she fired. She testified twenty shots any not did introduce The prosecution shotgun hand a to a evidence; Wilson saw Robert nor into weapon or other gun at who then shot “skinny guy” black evidence any physical it offer also Hampton twice. Carter witnessed the defendant linking either kind “the fat ground the after Hampton fall to that ei- assert it did not Finally, crime. also gun twice.10 She guy” fired his ei- L.A. a member of was Rios or Lewis ther gun. had that “Mario” fired After testified “Crips.” or the the “Bloods” ther the she did not tell testified that rested, Carter both prosecution the guy” fat or “the L.A. about “Mario” police present- evidence. Lewis presented Rios she was scared. He called because defense. ed a misidentification him- witnesses, testify did not four Wilson, eyewitness, also another Robert only an “uncon- presented self.9 heard on behalf of Lewis. Wilson testified defense. sciousness” guns. from different shots fired several shooting, Wilson told the of the night Carter, eighteen-year-old the Eugenia told Carter, Hampton. Wilson that Rios shot police witness state Deborah sister of that, approach he saw Rios She, along police the behalf. on Lewis’s testified in the air to friends, shotgun he fired his Hampton, and some her sister Rios, run, including so as everyone night in make оn the the deli outside However, everyone of trouble. keep out not that she did stated Carter question. police trial, he lied the he stated that Hampton at near anywhere see Lewis by the threatened being he was However, she did because shooting. time of arrest- Wilson was investigating officers. police that, spoke she when say interroga- ed them that Rios she told evening, first, that, told he He testified car at the ted. had seen She shooter. see Rios shoot that he did not per- up officers Hampton beat and saw scene state- changed his he Hampton, but then when in that She testified son car. him that they advised when that ments police, she assumed spoke to the she they wanted what tell them Rios, the shooter should because the shooter was going risk did so—or hair. At hear —that long light-skinned trial, At Wil- himself.11 jail for crime however, she could admitted that she Rios walk- that he did not see testified Further- son the shooter’s face. really see *8 "skinny” guy and that the Carter testified that there 10. pathologist testified the 8. At by together in a car. guy a Hampton was shot the "fat” that was no evidence shotgun. cross-examination, that Wilson denied On a wit- as called Howard Sihner 9. Lewis also going to come Rios he was scared that investiga- Sihner was in his defense. ness being was afraid of he him and that after Attorney's He tes- District Office. tor for the probation. of his in found violation Taylor escaped from his that tified Yvette located, thus yet custody had not been hearing necessitating preliminary that her jury. the testimony be read to Hampton and ing towards did not see who was not Lewis or Rios. Smith testified that did, however, the shots. He fired observe she never saw Rios the scene of the heavy-set Chicano man ten feet away shooting: Hampton from the time of the shooting. After Lewis finished presenting his evi- thought the Chicano Wilson man dence, defense, in testified his own shooter, could be the because he had seen primarily on the issue of physical Hampton up beat him earlier. Wilson tes- mental consequences by of his beating Hampton tified he saw start several Hampton.12 Rios’s defense counsel called fights other that night, as well as brandish experts two support the “unconscious- guns. He several not mention seeing defense,” ness Dr. Dreyfus, Pierre a neu- Lewis on the in night question. rologist,13 Edwards, and Dr. Daniel clini- Barbara Middleton was also cal psychologist.14 An unconsciousness of the shooting and also testified dеfense is an affirmative in defense Cali- aas defense witness for Lewis. She stat- fornia criminal Specifically, law. if the de- ed she witnessed Hampton attack fendant “committed the act charged with- in his car. She testified later in out being conscious” of the act performed, evening, shots, she seven heard includ- he is not criminally liable. Cal.Penal ing shots from a shotgun smaller 26(4). § Code The level of gun. unconscious- Middleton stated that she saw Rob- ness ert “need not reach the physical Wilson fire the dimen- shotgun but she did not see who fired the sions gun. commonly smaller She associated with testi- the term fied that (coma, inertia, she did not see Rios with a gun. incapability of locomotion Middleton did not mention Lewis in action, her or on); manual and so it can exist testimony. ... where subject physically in acts not, time, fact but is at the conscious
Antonia Smith was Lewis’s final defense acting.” Newton, People v. 8 Cal.App.3d witness. She was people one pres- 359, 376, (1970). Cal.Rptr. ent at the location of the shooting. She argued counsel that Rios testified that was not “con- she saw a dark-skinned black man with scious” at the “Jerry time of the curls” drive be- up shooting, a tan car. He got said, out of the cause he had a cаr and concussion and was “You suffer- mother-fuckers ing want to from jump somebody, amnesia due fight to his jump this” and then at shot four earlier night. He did not or five times. She stated that this man present any testimony from witnesses who 12. Rios testified being punched post-traumatic after syndrome. head On cross-ex- Hampton, face only he amination, remembered he testified that he could not defi- being there a lot of bright light. blood and nitely state that Rios had a concussion or He did not anything remember else about the amnesia; he relied on clinical informa- evening. He stated thing that the next he Dreyfus tion. Dr. testified that it was his recalled being after waking up beaten was opinion that Rios suffered amnesia from parking lot in Reno. When he first up woke concussion but that he couldn't how state again Cleveland, Reno and when was in long the amnesia would have lasted. Rios said experienced that he pain a lot of and dizziness. Rios testified that he contin- 14.Dr. regarding Edwards testified his exami- numb, ued headaches, to feel suffer from organic nation of Rios for injury. brain He memory problems. have opinion stated that it was his examining *9 13. Dreyfus Dr. two opinion testified it was his occasions Rios had suffered moderately Rios had damagе suffered a brain being as a result severe of beaten concussion and currently suffering from
805
assistance,”
“[¿judicial scrutiny of
al
shooting.15
saw the
highly
must be
def
performance
counsel’s
to
witnesses
expert
called two
The State
2052,
erential,”
689,
104 S.Ct.
de
id.
jury-
evidence.
expert
Rios’s
rebut
must,
minimum,
“at a
con
counsel
fense
of
guilty
found Rios
Lewis but
acquitted
investigation enabling
duct a reasonable
murder.
second-degree
about how
him to make informed decisions
client,”
represent his
Sanders v.
best to
Ii. Discussion
(9th Cir.1994)
1446,
Ratelle, 21
1456
F.3d
that he received
contends
Jennings
see also
(emphasis
original);
in violation
of counsel
assistance
ineffective
(9th
1006,
Woodford, 290 F.3d
1013
Cir.
v.
his
rights because
Amendment
of his Sixth
2002).
failure to con
attorney’s
A defense
(1)
investigator;
to hire an
failed
counsel
alternate defenses constitutes defi
sider
(2)
investiga
for an
request
to
funds
failed
attorney
when the
“nei
performance
cient
(4)
witnesses;
(3)
tion;
to interview
failed
investigation
a reasonable
ther conduces]
investigation done
on the
relied
improperly
strategic
of
reasons
showing
nor
ma[kes]
(5)
counsel;
failed to
defendant’s
by his co
Sanders, 21
so.”
F.3d at
failing
for
to do
the de
adequately research
1456;
Woodford,
v.
267
Phillips
seе also
(6)
unconsciousness; and
failed to
of
fense
Cir.2001).
(9th
Thus,
966,
coun
F.3d
980
drinking and
investigate whether
investi
duty
“has a
to make reasonable
sel
finding
consumption precluded
drug
to make a reasonable decision
gations or
on an ineffec
prevail
In order to
malice.
unnec
investigations
particular
that makes
claim, Rios must
of counsel
tive assistance
Strickland,
691,
A. Deficient case reasonably investigate Rios’s ure to strategy con selecting defense “strong pre there is Although At performance. with stitutes deficient conduct falls that counsel’s sumption trial,16 motion for a new hearing on the profession- of reasonable range in the wide ground of ineffective- girl- for a new trial on was his other witness 15. Rios's friend, Fong argued that Castro Lesley She testified Leatherwood. ness of counsel. investigate he came back to the failing his behavior when about for was ineffective being by Hampton. assaulted house after re- This defense is “wrong shooter defense.’’ de- as a "misidentification ferred herein sentencing, the After the verdict but before (Lewis's Castro, Lyons William fense.” Fong represent Leroy appointed court trial counsel), (Lyons's inves- Charles Pacheco of Rios Fong filed a motion on behalf Rios. *10 2002) Castro himself admitted that he made the (holding, an attempted murder rely on an decision to unconsciousness de- case which the defendant was accused of fense rather than a misidentification de- individuals, shooting at two the de preliminary fense to the hearing. At attorney fense rendered perfor deficient time, however, Castro had done little mance because he failed to interview a police reports more than read the potential eyewitnesses number of psychological review report one that had Wood, shooting); 1432, Harris v. 64 F.3d by original public been ordered de- (9th Cir.1995) 1435-36 (citing as deficien previously fender who had been assigned cies counsel’s failure to retain an investiga Rios, to the case. Aside from the only tor and failure to interview 29 out of 32 eyewitness Castro had interviewed was people identified police reports). Castro Taylor, Yvette a sixteen-year-old girl who acknowledged in the very police re admitted that she had been drinking on ports that had been turned over to him of the shooting, and who disap- preliminary before the hearing there was a peared Taylor’s before the trial. version Parrish, statement another of the however, of the events enough, was to car, three women in the had made to the cause Castro to conclude that “somebody police in Cleveland in which she stated going put to be able tо gun in that Thus, Rios did not shoot evidently.” Victor’s hand Castro made no Castro admitted at the time of the attempt to determine whether other wit- preliminary hearing, “there legiti was a Taylor’s nesses would corroborate testimo- mate conflict about whether or not Victor ny or whether a misidentification defense However, [Rios] was the shooter.” rather was feasible. than investigate in order to make a rea
The State contends the decision to soned decision about whether a misidentifi- pursue an unconsciousness feasible, defense rather cation defense was simply Castro than a misidentification defense was a tac assumed that the other witnesses would strategic tical or decision based on reason identify his client as the shooter. Such an assumptions. able See Pickens v. Lock assumption unreasonable, is any deci hart, (8th Cir.1983) 714 F.2d sion forgo a defense on the basis of (stating that it possible is for a “reasoned assumptions unreasonable is not a reason choice assumptions” based on sound to be able decision or a strategic or tactical deci the basis of a investigate decision not to Avila, sion entitled to deference. See further). Having spoken only (“[Cjounsel one wit F.3d at 920 hardly can be said however, shooting, ness about the Castro have made a strategic choice when s/he had insufficient on which facts to make any yet has not obtained facts on which a assumptions reasonable or on which to decision Sanders, could be made.” (quoting base 1457) (alteration reasonable decision as to F.3d at in original)). appropriate defense or defenses to be of Castro’s decision to abandon a misidentifi- fered. At least fifteen other witnesses to cation defense having spoken only the shooting were known to Castro at eyewitness one instead time of the preliminary healing. See defense, Avila unconsciousness on the basis of Galaza, v. (9th 297 F.3d 918-20 psychological Cir. one report,17 constitutes defi- tigator) were testify called to hearing experts were not even hired until after Castro Fong's motion. appointed, shortly which was before the fact, scheduled trial date. psycho- Rios's 17. Castro later had Rios examined a neu- rologist however, psychologist; and a those
807 Rather, Avila, Castro made the deci- 297 F.3d at defense. See performance. cient fail counsel’s (holding only respect that defense to evidence present sion 918-21 to eyewitnesses potential interview ure to defense without to “unconsciousness” was accused of his client when any who would investigating witnesses per constituted deficient the shooter being a claim of misidentification or in- support Baldwin, formance); 114 F.3d v. Johnson evidence, sufficiency despite (9th Cir.1997) (holding that 835, 837-40 might be knowledge that such witnesses to talk to more counsel’s failure defense failed to obtain the es- available. Castro to trial constitut prior two witnesses than to decide whether to sential facts on which United States performance); deficient ed defense, an un- a misidentification present Cir.1983) (9th 576, Tucker, F.2d 584 v. 716 defense, Thus, at consciousness or both. interview or the failure to (holding determination— point Castro made his wit key prosecution interview attempt preliminary hearing to the deci- —the performance); deficient nesses constitutes de- sion to abandon the misidentification 565, States, F.2d 692 Baumann v. United patently fense was unreasonable. Cir.1982) (“We (9th clearly held have 580 to interview counsel’s failure that defense argues The State Castro’s intends to prosecution that the witnesses investigation failure to conduct an may constitute ineffective during trial call he had access to the unreasonable because counsel.”).18 of assistance investigative reports and the trial materi 267 F.3d Phillips Woodford, In v. co-defendant, John prepared als for Rios’s (9th Cir.2001), we held that even counsel, However, both Lewis’s Lewis. chose a defense Phillips’s counsel though Lyons, as well as Lewis’s investi William or with the facts that was not inconsistent Pacheco, testified gator, Charles testimony, per counsel’s the defendant’s hearing provide did not post-trial failed to deficient because he formance was investigative their copies Castro used at “reasonably select the defense [] Lyons giving did recall Castro reports. reasonably selects Once counsel trial.” shortly before trial his witnesses list of defense, performance it is not deficient of each wit synopsis with a brief along See alternative defenses. pursue fail to handing recalls testimony. He also ness’s (9th Calderon, F.3d 1073 Cir. Bean v. who copies reports for witnesses Castro White, 1998); Turk v. 116 F.3d he denies during were discovered Cir.1997). (9th However, the counsel like copy awith provided that he ever Castro unlike the counsel Turk Phillips, investi- Bean, trial notebook or with earlier reasonably select of his did not Castro performed a counsel important, had Rios's place the trial logical examination took already investigation trial and com- started. before reasonable testimony support of pared expert the weak highly that a decision not 18. We doubt strong eye- defense an unconsciousness and to present a misidentification defense support of a misidentifi- witness de- an unconsciousness instead II.B., defense, Section see cation infra would, circumstances of this fense under the pres- certainly have chosen would almost case, strategic have constituted a reasonable ei- defense in lieu a misidentification ent choice, regardless of the facts an or tactical defense or a combi- ther an unconsciousness First, investigation a misidentifi- uncovered. event, no there is of the two. nation an un- need not conflict with cation defense failing justification to at least possible for strategy could defense. A trial consciousness investigation of both preliminary conduct a would be in which the defenses be formulated choosing or both. before onе defenses conflicting. complementary More rather than Even if we credit Castro’s reports. attorney rely police able for an re- gative events, however, witnesses). Castro ports interviewing version of in lieu of himself admitted that he did not have *12 also that Castro testified shortly much with Pacheco “until contact investigate made the choice not to a mis during before and the course of the trial.” pursue identification defense and to an Lyons’s He stated that he received trial partially unconsciousness defense instead days nine before trial and re- book because there insufficient funds to only twenty thirty it for to minutes. viewed investigate the events of the of the testified that he looked at Castro never However, murder. Castro’s reluctance to any reports prior from Pacheco to the time public ask for funds to hire his own inves present only to he made his decision evi- tigator proper was not a reason fail for an support dence that unconscious- would ing pursue investigation to an initial into At defense. the time that he made ness potentially feasible defenses. Castro was not to the decision misidentifica- obviously public aware that funds wеre defense, and not to investigate tion if given available he needed them so, doing he had not possibility seen both of the mental health experts who therefore, investigative reports; of Lewis’s paid Castro hired were with such funds. claim that reports he cannot now those Although express Rios did some concern of his decision to were the basis abandon a having attorney over paid by who was Moreover, defense. misidentification even county, for fear of rep underzealous reports prior if Castro seen resentation, expressed any he never un hearing, it would have preliminary been willingness public to use funds to hire an him rely solely for on the unreasonable investigator. performed for a co-defen- investigation sum, In agree we with the state court dant, the co-defendant’s because interests failure, and hold that Castro’s in a first- might well conflict case with Rios’s degree murder to interview more testified, example, Pacheco for own. witness, than one when there were dozens looking for information to exculpate he was available, potential eyewitnesses before Lewis, possible strategy One not Rios. for deciding to potentially аbandon a meritori- have been to Lewis would accuse Rios of ous defense constituted constitutionally de- fact, being the shooter. two of Lewis’s performance.19 ficient trial, Eugenia witnesses at Carter and Wilson, initially police told the Robert Prejudice B. Thus, Rios shot whatever help reports may may Pacheco’s or not have we Because hold that Castro’s been, could not reasonably rely performance unreasonable, Castro objectively solely on reports any those more than he we now consider per whether his deficient reasonably solely could have relied Harris, on the formance prejudiced Rios. See provided police reports to him to the F.3d at 1435. In evaluating prejudice, we Lord, preliminary hearing. See 184 F.3d have stated that “ineffective assistance (concluding at 1089 that it was unreason- duty claims based on a investigate must Despite II.A., colleague’s customarily our color- tion the state court's decision was clear- dissent, Thus, ful it was clear to the ly compelled by California state dissenting law. our court that colleague's counsel “failed to attempt portray meet the stan- per- counsel’s rеasonably competent dard of a exemplary advocate” formance as and his choice of an performance and that his was deficient. Un- unconsciousness defense as "Rios's best above, supra hope” quite der the cases discussed see Sec- is remarkable. Taylor the car. bring any guns said strength light considered be gun in the backseat of the Eggleston v. that she saw case.” government’s (9th shot, Hampton Hay- but States, Cir. Cadillac 798 F.2d United not 1986). den and Parrish testified gun shooting. see a the car after the Here, in although the State did Hayden and Parrish testified eyewitnesses, testimony of five troduce the that he several admitted shot inconsistent and testimony was both their times, Taylor did remember him al example, For severely impeached. Hayden admitting anything. Taylor and initially stated though Deborah Carter that Lewis shot first said *13 admit Hampton, she later that Rios shot him after but Parrish testi- Rios shot him do so. actually did not see ted that she fied that she did not see Lewis shoot Rather, day that Rios decided the next she Hampton at all. victim, recog because she had shot the Moreover, testimony the the trial of Moreover, admit car. Carter nized Rios’s crucial differed materi- state’s witnesses thе night the of that she was drunk on ted they initially from the stories respects al very poor eyesight. had shooting and police they when arrested. For told were did not testified that she Herndon Sherri arrested, first example, when Parrish She did see see who fired the shots. police, told in direct conflict with she the the shoot Hampton just before approach that did not see testimony, her trial she that Rios did ing but she also testified and that Rios could not have shooting time. Herndon admitted gun have a at the Hayden’s initial been the shooter. night. that was “almost drunk” that she that she police, statement she said retracting her Carter With Deborah gun that never saw Rios or Lewis with Hamp Rios shoot statement that she saw they at testified that night, but trial she she stating that ton and Sherri Herndon get guns Hampton went to after assaulted shots, three did not see who fired Rios. car Rios and in the young women deal of great There was also a only prosecution that were the from the wit- at the both State’s testify at trial that Rios shot witnesses to witnesses, about and the defense nesses admitted, All three women Hampton.20 shooters, a number of possible other however, they drinking had been whom, testified, were observed witnesses admit night, and two of them hеavily that Hampton at and some whom shooting marijuana they smoking been ted that had Specif- him. to harm had reason want Additionally, there with cocaine. laced coming ically, heard shots Deborah Carter in then1 were material inconsistencies where the L.A. members from the area hap police about what statements to the standing, Euge- and gang Crips evening. For over the course of pened “fat L.A. one of the nia Carter also saw that Rios and Hayden testified example, Hampton at twice. guy[s]” gun fire his guns from Rios’s mother’s Lewis retrieved gang, of the Bloods Hampton, member by Hamp house after Rios was assaulted L.A. however, threatening the Parrish, had earlier been stated Taylor ton. things, waving other by, among Crips see either of the two they did not at trial statements and testified Eugenia Carter and Robert It is true that witnesses, Wilson, person had who fired two of Lewis's defense could not see the face of the previously shot said that Rios the shots. However, they both retracted their them gun yelling “Crip killer.” weight to the State’s evidence that Rios “heavy-set Robert Wilson testified that a and Lewis fled from California and drove man,” whom Chicano beaten shooting. Ohio Although evi- up was ten night, away earlier feet dence of flight is some guilt, evidence of from the time of the Lewis’s counsel effectively was able thought might and that he have shot guilt overcome inference of from the him. According to other testimony, flight by presenting testimony that sup- Hampton had attacked a ported number of indi- a misidentification defense —evi- evening, according viduals to An- dence similar to that available to Rios’s Smith, tonia a dark-skinned black man counsel as well. car, “Jerry up curls” drove in a tan Thus, the State’s against case shouted “You mother-fuckers want Rios was at best close one. There was this,” somebody, jump jump and shot physical no evidence Rios’s involvement Hampton four or five times. shooting. There was no weapon Middleton, Carter, Eugenia Barbara found, fingerprints, no no gunpowder resi Deborah Carter that they all testified saw due, no DNA depend evidence. case *14 firing shotgun Robert that night. Wilson ed almost on the entirely eyewit three Deborah and Eugenia Carter both testified nesses testimony whose the jury refused to that a man named “Mario” fired a weapon accept significant in part when it acquitted during the Additionally, Debo- shootings. Rios’s There co-defendant. was direct tes light-skinned rah Carter saw “a guy” black timony, although conflicting, that several
with a gun
night. Eugenia
Carter
persons
other
present
that evening were
“skinny
guy”
also saw a
Hamp-
shoot
black
the actual shooters. There was also testi
shotgun.
ton twice with a
Witnesses mony that a feud between rival gangs, the
anywhere
heard
from three to twenty-two
Bloods,
Crips and the
physical
had led to
gun
The coroner
shots.
testified that
violence involving Hampton earlier that
was shot
multiple gun shots
very evening and that members of the
coming from different directions.
Crips were involved in the shooting. The
Additionally, it is clear that the State did
state did not
assert
either Rios or his
not have a strong
against
case
the two co-
co-defendant was a member of either gang.
defendants for another reason. The jury With this understanding of the State’s
them, Lewis,
acquitted one of
case,
even though
we must consider whether “there is a
two of the
eyewit-
State’s three critical
that,
probability
reasonable
but for coun
nesses, Tonya Hayden
Taylor,
and Yvette
unprofessional errors,
sel’s
the result of
testified that
they saw both Lewis
the proceeding
and
would have been different.”
Rios
Hampton,
Strickland,
shoot
and all of the
694,
state’s
at
U.S.
S.Ct. 2052.
placed
evidence
and
together
Lewis
A
probability”
“reasonable
is a “probability
at all
throughout
relevant times
the night.
sufficient to undermine confidence in the
Apparently,
Hayden
finding
Taylor’s
outcome.”
2052;
Id. at
104 S.Ct.
testimony unpersuasive,
Franklin,
the jury acquitted
Lewis. counsel, Co-defendant Lewis’s who in-
In addition to demonstrating that vestigated the case from his client’s stand- jury Hayden found Taylor’s testimony point, presented eyewitnesses four who unpersuasive, at part, least substantial testified in support of Lewis’s misidentifi- the acquittal of also demonstrates cation Although defense. the evidence jury give persuasive showed that Lewis together and Rios were constituted an unrea- question and information thus evening all times on choice, II.A., nei- supra that either both or see Section strongly sonable suggested shooting, in the testimony support ther were involved offered theory was that although prosecution’s in all contributed sub- defense likelihood together guns, obtained and Lewis stantially prejudice Rios suffered. victim, to look for the to the scene defense, went aiding Rather than his Rios’s him, counsel, Rios’s him and shot found that he did not remember Lewis’s, any evi- failed to unlike that occurred at the time of the events fire the shots that his client did not dence likely be- helped prosecution responsible. persons and that other cause, given the inconclusiveness no evi- counsel offered simply, Put experts’ testimony, may Rios’s statements Instead, be- of misidentification.21 dence jury that well have communicated to the failure to investi- cause of his unreasonable thought might even he that he have shot to locate the any attempt make gate or to presentation of Rios’s am- who, witnesses, if numerous available testimony accompanied by high- nesia Rios, called, like would have testified testimony regarding ly-equivocal expert misidentified, Lewis, he offered had been “unconsciousness,” supra see notes 13- was le- defense that Rios only the feeble of Rios’s counsel’s product was a direct the time of the “unconscious” gally a proper investigation failure to conduct what could not remember shooting and un- selecting before an ill-advised and happened. not, informed defense true or dero- défense gated plausible from the far more present- that Rios’s counsel The defense that could have been offered—the defense investigate a result of his failure ed as *15 by co-defendant.22 successfully urged only wholly inadequate based was did, closing tainly presented a misidentification de- have Although counsel in his Rios's 21. defense or and not an unconsciousness jury, suggest Lewis's fense argument Although the two. it would a combination of might support a determination that evidence possible to offer both defenses si- have been Hampton, Lewis’s evidence Rios did not shoot fact, multaneously, supra see note it is most was, help to Rios. of little affirmative eyewitnesses likely, given who the number presented by Lewis Two of the four witnesses willing testify that Rios did not shoot police seen previously told had had the con- Avila, Hampton and the tenuous nature of also Rios shoot the victim. See by expert who witnesses clusions reached attempted (holding, F.3d at 918-23 support an unconsciousness de- testified in ac- which the defendant was murder trial in fense, opted pur- individuals, would have that counsel shooting at two cused of defense. In sue the misidentification eight to interview additional counsel’s failure facts, short, investigated the he had counsel eyewitnesses would have testified that who certainly almost not have offered Rios's would preju- the shooter was the defendant was not hap- not recall what that he could presented though had dicial even counsel occurred, shooting pened at the time eyewitnesses at who corroborated three trial true not. Rios's statements were or whether testimony that he was not the the defendant's Moreover, presented Rios's even if he shooter). statements, they been offered in would have testimony by a number of investigated of direct the case the context If Rios’s counsel had that Rios did not shoot selecting unsupported credible witnesses the feeble before defense, jury then have been Hampton, and a would he would have "unconsciousness" likely accept as true. them witnesses who were far more discovered a number of event, that Rios’s own state- testify to the extent willing to that Rios did not shoot may to the adverse ments have contributed Hampton, discussion A reasonable see infra. verdict, they as a direct jury were offered attorney ample exculpatory testi- defense investigate consequence counsel's failure to cer- mony eyewitnesses would almost from t-shirt, record reveals had Rios ade- white and blue starting khakis investigated case to de- quately shooting. Warren would have testified defense, he ciding on a would have uncov- that, at the time of the shooting, he saw evidence supporting ered substantial standing next to a truck across the defense—evidence misidentification street and that any- Rios did not shoot at as that persuasive by as offered Lew- least one. in Lewis’s During
is’s counsel defense. Third, Archie, Jason a close friend of and federal post-trial pro- state habeas Hampton’s him, grown up who had ceedings, eyewitnesses shooting five would have testified that Rios did not provided sworn declarations testi- and/or Hampton. shoot at Archie was at the mony affirmatively stating that Rios was night scene on the in question and saw First, not the shooter. Kelvin tes- Wilkins Hampton attack Rios in his car. Archie deposition tified he was at the would have testified that he standing shooting scene on the and was right next to Hampton at the time of the Hampton 20-30 feet from when he was shooting men, and 'that he witnessed two killed. stated that he Wilkins has known Rios, neither of whom was shoot grade per- Rios since school and that the Both of the men were individuals with son who shot was not Rios. The whom Hampton and Archie had shooter, stated, fought Wilkins was over six feet earlier thаt night probably the Crips re- weighed tall and about 250 pounds, where- — ferred to Warren. pulled The two men as Rios is 5'6" or 5'7" tall and weighs about out guns their and Archie tried tell pounds. When Wilkins learned out,” sister, Hampton to “watch suspect, Rios was a but it was too called Rios’s Lori, late. and obtained phone Castro’s number.
Wilkins called Castro’s office and left Fourth, Alonzo Joseph would have testi- message, but Castro never returned his fied that he witnessed the call. away was about feet from Rios and 20 Second, Maurice Warren submitted a away feet from at the time. Jo- stating declaration that he on seph would have testified that Rios did not the night question and saw the shooting. have a gun and did not *16 shoot He, too, averred that Rios was not the Fifth, Rose Marie Chapman, originally shooter. in Warren stated his declaration list, on the State’s witness would that have he was a member of the gang, Bloods testified that she witnessed the along shooting with Hampton. Warren could have and Rios was not one of the testimony corroborated the of shooters. many other Chapman would have testified that Hampton witnesses that had she fights started present night with that people throughout the and saw a black evening, even man who was attempted approximately before in 5'9" park front of tall and weighed approximately Specifically, pounds deli. Warren 200 would have drive he, up yellow testified that in a Hampton, and four-door car James and shoot in a engaged fight Barren with a at group of least three times with a shot- Crips time, members gang gun. who were At the same she saw a black Later, that night. Crips those same man gang with short hair shooting at Hampton. in members returned a small car individuals, however, white and Neither of these re- hat, small black man wearing a blue sembled Rios. they support and thus prejudicial rather than undermine the claim of effect. Thus,
Thus, strong, unequivo- testimony par- much their could have been there was ticularly persuasive. cal, available to exculpatory evidence he conducted a reason- had Rios’s counsel say We cannot that the State’s Wilkins, To Castro investigation. find able strong case Rios was so that against than nothing had to do more would have testimony eyewit of the five -available call. Castro knew about phone return his failed to (along nesses Rios’s counsel locate she was on the State’s Chapman because Smith) that of Antonia would not have gone Archie and witness list. Warren created reasonable doubt the mind of a Hay- Tonya to the scene juror. possible reasonable It is that the cousin, Hayden, Taylor, den’s Aaron Reid. might still have been able to obtain a State they spent Parrish all testified by exploiting conviction inconsistencies party at part evening of the the earlier by the different accounts of the or was also at that hosted Reid. convincing jurors should still investigated Hamp- Had Castro party. believe the even more inconsistent testimo the actions of night, actions that or ton’s ny young of the three intoxicated women witnesses, he prosecution principal However, car. can little there be have discovered both Warren likely would testimony doubt that the of the five addi Rios’s state habeas counsel and Archie. signif tional “would have altered witnesses the motion for a new Joseph found before icantly evidentiary posture filed, and there is no reason to trial was Myers, case.” Brown v. 137 F.3d would not have been that Castro believe (9th Cir.1998); Avila, see also a rea- find him had he conducted able to 920-23; Lord, F.3d at 184 F.3d 1095-96. investigation. sonable we conclude there is a rea Because testimony probability was the sonable At Antonia Smith Archie, was, course, Wilkins, Warren, Joseph,- she defense witness—and Chapman, coupled when with Antonia affirmatively stat- witness for Lewis—who testimony, would have caused the person who fired the Smith’s ed that she saw jury judgment guilty Rios. If not to return a person and that the was not shots Rios, our confidence in the investigated respect the case with properly Castro had very At the wit- verdict has been undermined. trial and discovered the five before least, above, “grave find doubt” as whose is discussed we ourselves nesses defi prejudicial he would have nature of Castro’s reasonably it is certain that Lord, 184 F.3d at support performance. evidence in of a cient See offered direct required if merely (holding that reversal is defense and not misidentification as to “grave an uncon- we are in doubt” harmless testimony regarding presented ness of an error that affects substantial Significantly, defense. least sciousness *17 Thus, prej hold that Rios was testimony rights). whose we two of the five witnesses conduct a by udiced Castro’s failure to exculpated have Rios were close would victim, them, least, investigation and that a writ of of reasonable friends of the оne granted.23 be gang. corpus the Bloods habeas must being a fellow member of per- Assuming deciding Rios's perfor- without 23. also contends that Castro’s Rios constitutionally constitutionally formance was deficient was ineffective be- mance preju- respects, has not established present the both he cause he failed to research and with to come forward and failed to in- dice. He has failed defense of unconsciousness suggesting presentation drinking drug any evidence that the vestigate whether Rios's expert testimony on the uncon- finding consumption precluded a of malice. different In. CONCLUSION the unconsciousness defense before he had conducted an investigation. extensive Of failure Rios’s counsel’s to interview wit- course, one does thinking have to start nesses or otherwise conduct investi- on,1 proper approach early about the but gation potential as to a misidentifieation objectively an defense constituted unrea- significant what is is that Castro saw a pre-trial investigation. sonable Because great deal of information thereafter and that, probability there is a reasonable saw change no reason to ap- his initial for failure to counsel’s conduct ade- proach. perfect hindsight, With we 20/20 quate pre-trial investigation, the result of can decide that he should have done more different, trial have been would investigation, but that is not the standard. jury’s because our confidence ver- is, itAs Castro’s client undermined, did not even dict we hold is that counsel’s murder,2 deny committing the and it performance prejudiced ineffective Rios. Thus, deprived Rios was injured his Sixth clear that the outraged right Amendment to effective assistance assault,3 plan a murderous returned to and is entitled counsel to habeas relief. out,4 beating scene of the to carry it reverse We therefore the district court’s and after the shooting fled the scene and dismissal of Rios’s federal petition habeas the state. Interestingly enough, during and remand case to the district court that lengthy flight, which took him far as grant with instructions to the writ unless Ohio, said, “[w]hy as did it have to grants the State of California Rios a re- happen,” in response to discovering that trial within a period reasonable of time to Hampton was dead. One can properly be set the district court. assume that it was not a feeling of human REVERSED AND REMANDED for empathy the brute who had beatеn him WITH INSTRUCTIONS. into a alleged state of amnesia that caused the exclamation.5 likely, Most it was an FERNANDEZ, Judge, Circuit admission that revenge gotten him Dissenting: into real mess. true, majority It is as the emphasizes, that attorney initially Castro Moreover, decided on counsel did not eschew the might that, sciousness defense have sifting resulted in a for facts. Absent no solution will Moreover, respect different outcome. with ever be obtained. investigate Castro's failure drinking, Rios's Rios himself stated that he was not drunk 2. He said nothing. that he remembered night, and there is no evidence that Rios Thus, help he offered no to counsel. any point blacked out at before the drug due to alcohol. consump- As for the Significantly, 3. what people Rios said to the tion, presented expert Rios has no him was that going get drugs that the ingested amount of he when girls going it and the to see some real joint shared a cocaine-laced with four oth- men. people er adversely would so affect him as to preclude Thus, finding of malice. there is Surely, returning Rios was not to the scene suggest no evidence to pre- had Castro fully armed in order to have a rational con- sented a actuality” "diminished defense on play pаtty-cake versation or to the basis of his use drugs, of alcohol and outcome of the trial would have been differ- *18 ent. assault, black, eyes 5. After the were swollen, bleeding, nose was his face was 1.Evety scientist person knows that a has to dizzy. he was construct some sort of screen before he starts
815
Rios;6 in them on the stand to introduce more con
for
defense
misidentification
flicting testimony,
pro
“the result of the
the evidence
fact,
out at trial
as it came
ceeding would have been
Rios as
different.”
much doubt about
just as
showed
668,
Washington,
v.
466
counsel Strickland
U.S.
Again,
Lewis.
as
about
it showed
694,
2052, 2068,
104 S.Ct.
more of the same. Rios; favorable to
gave testimony If he did not shoot
said moved that sort of
jury going was to be concerned, it Rios was as far as evidence PAYTON, William Charles been.7 It was that it would have seems Petitioner-Appellee, was, not, him as against the evidence v. said, extremely damaging. the state court WOODFORD, Warden, Jeanne foresight hope Rios’s best Really, Respondent-Appellant. adopted the mental defense probably was course, it hindsight, by Castro.8 Payton, William Charles Petitioner- than uncon- looks as if some defense other Appellant, emphasized. should have been sciousness v. Indeed, hindsight the unconsciousness failed, Woodford, Warden, so no other defense could defense Jeanne Respondent-Appellee. have been worse. But is not standard either. 00-99000, Nos. 00-99003. of it that the long and the short is Appeals, States Court of United courts, the record did not stun the state Ninth Circuit. judge, judge, or me magistrate district did it grave into a doubt. Nor state En Argued and Submitted in a miasma of any wandering leave of us 20, March 2002. Banc contrary, undermined confidence. On the Aug. 2002. Filed “probability suffi- Rios failed show in the out- cient to undermine confidence
come” that had his counsel interviewed place chosen to
more witnesses then free, closing argument jury go let Actually, 8.It is true that the a fourth of his to that defense. hardly speculate why devoted we can it took rate, against path. cuts At newly dredged up 7. The witnesses would sim for It indicates that conflict- rather than him. conflicting ply stories about have added more going ing eyewitnesses evidence from shooting and from what location. who was hide; jury saw his case differ- to save his Lewis, 1373, 1382 See v. 64 F.3d Clabourne ently. 1995); (9th Schaflander, States v. Cir. United Cir.1984). (9th 743 F.2d