Pedro Vega v. Charles Ryan, et al

Filing

FILED OPINION (MARY M. SCHROEDER, JAY S. BYBEE and RALPH R. BEISTLINE) REVERSED AND REMANDED. Judge: MMS , Judge: JSB , Judge: RRB Authoring. FILED AND ENTERED JUDGMENT. [8859916]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PEDRO IMPERIAL VEGA,
Petitioner-Appellant,

No. 12-15631

v.

D.C. No.
4:09-cv-00473CKJ

CHARLES L. RYAN; CARSON
MCWILLIAMS,
Respondents-Appellees.

OPINION

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted
September 12, 2013—San Francisco, California
Filed November 13, 2013
Before: Mary M. Schroeder and Jay S. Bybee, Circuit
Judges, and Ralph R. Beistline, Chief District Judge.*
Opinion by Judge Beistline

*

The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.

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VEGA V. RYAN
SUMMARY**

Habeas Corpus
The panel reversed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition based on ineffective
assistance in counsel’s failure to familiarize himself with the
file and call witnesses who could provide exculpatory
testimony.
After petitioner’s conviction of contributing to the
delinquency of a minor, child molestation, and sexual abuse,
his trial lawyer learned that the victim had recanted her
allegations to her priest. The panel held that counsel’s failure
to familiarize himself with petitioner’s file led to a failure to
present a key witness to the jury, and that a reasonable lawyer
would not have made such an “inexplicable” decision. The
panel also held that counsel’s deficient performance was
prejudicial, because the priest’s testimony about the victim’s
recantation was not merely cumulative of her own testimony
admitting the recantation to her mother, but could have tipped
the scales in petitioner’s favor.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Patricia A. Taylor (argued), Law Office of Patricia A. Taylor,
Tucson, Arizona, for Petitioner-Appellant.
Thomas C. Horne, Attorney General, Kent Cattani, Division
Chief Counsel, Joseph T. Maziarz, Section Chief Counsel,
David A. Sullivan and Nicholas Klingerman (argued),
Assistant Attorneys General, Tucson, Arizona, for
Respondents-Appellees.

OPINION
BEISTLINE, Chief District Judge:
Petitioner, Pedro Imperial Vega, stands convicted of
contributing to the delinquency of a minor, child molestation,
and three counts of sexual abuse of his stepdaughter, based on
events that occurred between 1996 and 1999. The Arizona
state courts rejected Petitioner’s direct and collateral
challenges to his conviction. Petitioner then filed a federal
habeas petition under 28 U.S.C. § 2254, arguing that he had
received ineffective assistance of counsel. After an
evidentiary hearing, the district court denied the petition. We
reverse.
FACTUAL AND PROCEDURAL HISTORY
Between 1996 and 2002, Vega was represented by three
different lawyers in connection with the underlying charges
against him. The first lawyer represented him on federal
charges, which were dismissed on jurisdictional grounds.
The second lawyer represented him on state charges, which

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the prosecutor ultimately chose not to pursue. State charges
were brought for a third time following a new set of
allegations by the victim, and yet a third lawyer represented
Vega at trial. After two mistrials, one of which was caused
by the third lawyer’s absence, Vega was convicted in 2002.
He was sentenced to twenty-eight years in prison.
After Vega’s conviction, his trial lawyer learned that the
victim had recanted her allegations to her priest (“Father
Dan”). Counsel then filed a motion to vacate, and during an
evidentiary hearing Father Dan’s testimony was presented to
the trial judge for the first time. Because Vega himself, as
well as his two prior counsel were aware of the Father Dan
recantation, the trial judge concluded that Father Dan’s
testimony was not “newly discovered evidence” pursuant to
Ariz. R. Crim. P. 24.2(a)(2), and, therefore, the trial judge
denied the motion to vacate.
On direct appeal, Vega argued that the trial court had
erred by denying both his motion for judgment of acquittal
and his motion for a new trial. The Arizona Court of Appeals
denied Vega’s direct appeal on the merits, finding that the
recantation to the priest was not “newly discovered
evidence,” and that there was not a “reasonable probability”
that the priest’s testimony would have changed the outcome
of the case. The Arizona Supreme Court summarily denied
review.
Appellant then sought state post-conviction relief on the
grounds of ineffective assistance of counsel. Following a
two-day evidentiary hearing in 2008, the trial court denied
post-conviction relief because Vega knew about the victim’s
recantation to Father Dan but had failed to tell his lawyer, and
because the victim had admitted recanting her allegations to

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her mother during her trial testimony. The trial judge found
this admission rendered evidence of other recantations
cumulative. The Arizona Court of Appeals granted review,
but “[s]eeing no reason to repeat the trial court’s analysis
here,” it adopted the trial court’s decision and denied relief.
The Arizona Supreme Court again summarily denied review.
Having exhausted all other possible remedies, Vega
initiated the instant federal habeas proceedings, seeking relief
pursuant to 28 U.S.C. § 2254.
In a report and
recommendation, a magistrate judge recommended denying
the petition on the merits and dismissing it with prejudice.
The district court agreed with the magistrate judge’s report,
noting specifically that “[i]n light of the victim’s testimony
[that she had recanted], the additional instances of
recantations would have been ‘largely cumulative in their
basic effect.’” The district court then concluded that “given
the reasons the Arizona courts stated for not granting relief,
this Court does not find that the state courts’ decision
involved an unreasonable application of federal law.”
However, the district court granted a certificate of
appealability on Vega’s claim about trial counsel’s
investigation and presentation of evidence of the victim’s
recantations.
Vega claims that his trial counsel was ineffective for
failing to familiarize himself with the file and, accordingly,
failing to call witnesses* who could provide exculpatory
testimony.
He further claims that the state court

*

Vega claimed that counsel failed to call several witnesses. Because we
find counsel’s failure to call Father Dan dispositive, we do not address
Vega’s other claims of error.

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unreasonably applied clearly established federal law
regarding ineffective assistance of counsel. We agree.
DISCUSSION
We review de novo the district court’s denial of habeas
relief. McMurtrey v. Ryan, 539 F.3d 1112, 1118 (9th Cir.
2008). Because Petitioner filed this petition after April 24,
1996, the Antiterrorism and Effective Death Penalty Act
(AEDPA) of 1996 governs review of his claims. Estrella v.
Ollison, 668 F.3d 593, 597 (9th Cir. 2011). AEDPA imposes
a “highly deferential” standard of review and “demands that
state-court decisions be given the benefit of the doubt.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).
Review of ineffective assistance claims under § 2254(d)(1) is
“doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111,
112 (2009).
In evaluating the state’s denial of habeas
relief, we must decide whether, considering
only the evidence before the state court, the
determination that Petitioner received
constitutionally sufficient assistance of
counsel was “an unreasonable application of
[ ] clearly established Federal law” or resulted
from an “unreasonable determination of the
facts.” 28 U.S.C. § 2254(d). “Under the
‘unreasonable application’ clause, a federal
habeas court may grant the writ** if the state
court identifies the correct governing legal
principle from this Court’s decisions but

**

The original quote states “relief,” not “the writ.”

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unreasonably applies that principle to the facts
of the prisoner’s case.”
Cannedy v. Adams, 706 F.3d 1148, 1157 (9th Cir. 2013)
(quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)).
Cannedy explains that a federal habeas court making the
“unreasonable application” inquiry should ask whether the
state court’s application of clearly established federal law was
objectively unreasonable. Id. at 1158. Even if the state court
arrived at what we think to be an incorrect result, that result
must be upheld “so long as fairminded jurists could disagree
on the correctness of the state court’s decision.” Id. at 1157
(citation omitted). Accordingly, “[i]f the state court
reasonably concluded that Petitioner failed to establish either
prong of the Strickland test, then we cannot grant relief.” Id.
Here, the state courts correctly referenced Strickland v.
Washington, 466 U.S. 668 (1984), but the courts’
“adjudication of the claim . . . resulted in a decision that . . .
involved an unreasonable application of, clearly established
Federal law.” 28 U.S.C. § 2254(d)(1). In Strickland, the
Supreme Court articulated the two-prong test for determining
whether counsel’s assistance was so defective as to require
reversal of a conviction: “First, the defendant must show that
counsel’s performance was deficient. . . . Second, the
defendant must show that the deficient performance
prejudiced the defense.” Id. at 687.
As to the first prong, “[t]he proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms.” Id. at 688. Here, the state courts
rejected Vega’s claim that counsel shirked his professional
duty because “[i]t is illogical and unreasonable to hold
[counsel] responsible for Petitioner’s failure to divulge such

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information [about the Father Dan recantation] to him.” We
disagree.
Strickland allows for a finding of ineffectiveness based on
omissions, not just overt acts of counsel. Id. at 690. So, “[a]
lawyer who fails adequately to investigate, and to introduce
into evidence, records that demonstrate his client’s factual
innocence, or that raise sufficient doubt as to that question to
undermine confidence in the verdict, renders deficient
performance.” Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir.
1999); see also Rompilla v. Beard, 545 U.S. 374, 390 (2005)
(finding ineffective assistance in a capital case where “[i]f the
defense lawyers had looked in the file . . . they would have
found a range of mitigation leads”). Additionally, while
Strickland protects “strategic choices made after a thorough
investigation of law and facts[,] . . . counsel has a duty to
make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.”
466 U.S. at 690–91. A decision not to investigate “must be
directly assessed for reasonableness in all the circumstances,
applying a heavy measure of deference to counsel’s
judgments.” Id. at 691. In this case, counsel did not know
about the Father Dan recantation until a week-to-two weeks
after the trial, so there cannot be a suggestion that counsel
made a strategic decision not to call Father Dan. Thomas v.
Chappell, 678 F.3d 1086, 1104–05 (9th Cir. 2012) (noting
that trial counsel’s failure to call a witness could not be
excused as a tactical decision because counsel did not have
sufficient information to make an informed decision).
Moreover, finding ineffective assistance of counsel in a
case in which a petitioner alleged that he was falsely accused
of abusing his step-daughter, we recently explained: “No
competent lawyer would have declined to interview such a

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potentially favorable witness when that witness had been
clearly identified, the witness was easily accessible and
willing to provide information, and trial counsel faced a
dearth of defense witnesses.” Cannedy, 706 F.3d at 1161.
See also Silva v. Woodford, 279 F.3d 825, 833 (9th Cir. 2002)
(“an attorney’s failure to prepare for and challenge the
testimony of a critical witness may be so unreasonable as to
violate both prongs of the Strickland test.”). We reach a
similar conclusion: counsel’s failure to familiarize himself
with his client’s file—despite this case’s tortured history—led
to a failure to present a key witness to the jury. A reasonable
lawyer would not have made such an inexplicable decision.
Accordingly, counsel’s performance was deficient.
A defendant must also show that the deficient
performance prejudiced him. Strickland, 466 U.S. at 687.
Vega complains that counsel’s failure to prepare and
investigate his case, including his failure to read the files
prepared by prior counsel, was a critical failure because the
testimony of a priest who heard “what he believed to be a
sincere recantation” could have tipped the scales in Vega’s
favor.
At trial, the victim’s mother testified that her daughter
had recanted to her, and counsel cross-examined the victim
about her recantation to her mother, including whether she
had dreamt the events and whether her allegations were false
and motivated by a desire to manipulate her home
environment. Because it was undisputed that the victim had
recanted, the State argues (and the lower court found) that
evidence of other recantations would have been cumulative.
We disagree. Evidence of multiple recantations was not
merely cumulative. It also could have impacted the victim’s
credibility, which the appellate court found “was a central

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issue based on evidence of her recantation.” Indeed,
credibility was crucial to Vega’s defense of actual innocence
because the uncorroborated testimony of a victim is enough
to sustain a conviction for child molestation. State v. Munoz,
561 P.2d 1238, 1241 (Ariz. App. 1976). Thus, the possibility
of even one juror finding reasonable doubt in light of multiple
recantations, or because one of those recantations was made
to the victim’s priest, was reasonably likely. Accordingly,
“there is a reasonable probability that, but for trial counsel’s
deficient performance, the outcome of the trial would have
been different.” Cannedy, 706 F3d. at 1166.
We conclude that the state courts erred by determining
that counsel’s performance did not prejudice Vega. Under
these circumstances, counsel’s failure to read Vega’s client
file is not excused by the failure of the client to inform
counsel of what was in the file. See Johnson v. Baldwin,
114 F.3d 835, 838–40 (9th Cir. 1997) (“The prejudice from
failing to investigate . . . and confer more fully with
[petitioner] is not avoided by the fact that [petitioner]
misinformed his attorney.”). And counsel’s abdication of his
duty to investigate, particularly given the case’s long history
of failed prosecutions, is deficient performance under
Strickland. In this case, the deficient performance was also
prejudicial because the recantations were not merely
cumulative, and proper disclosure to the jury could have
tipped the scales in Vega’s favor. The State’s suggestion to
the contrary is simply not persuasive. Petitioner’s claim
therefore meets the Strickland standard for ineffective
assistance of counsel, and his petition for relief must be
granted.
REVERSED AND REMANDED.

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