Rodriguez v. Warden, C.S.A.T.F.

Filing 70

ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge 6/1/11. (pjhlc3, COURT STAFF) (Filed on 6/1/2011) (Additional attachment(s) added on 6/1/2011: # 1 Certificate of Service) (vlk, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SALVADOR A. RODRIGUEZ,

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For the Northern District of California

United States District Court

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Petitioner,

No. C 04-2233 PJH

v.

ORDER GRANTING PETITION
FOR WRIT OF HABEAS
CORPUS

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DERRAL ADAMS, Warden,
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Respondent.
_______________________________/

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Before the court is the petition for writ of habeas corpus pursuant to 28 U.S.C. §
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2254, filed by state prisoner, Salvador Rodriguez (“Rodriguez”). Having reviewed the
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parties’ papers, and having carefully considered their arguments, the record, and the
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relevant legal authorities, the court hereby GRANTS the petition.
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BACKGROUND
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On July 8, 1998, Rodriguez was charged with murder under California Penal Code §
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187, along with enhancements that during the commission of the murder, he intentionally
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discharged a firearm and proximately caused death under California Penal Code §
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12022.53(d); that he used a firearm under California Penal Code §§ 1203.06 and 12022.5;
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and that he inflicted great bodily injury under California Penal Code § 1203.075.
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On January 20, 2000, an Alameda County Superior Court jury convicted Rodriguez
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of second degree murder with the use of a firearm to proximately cause death, but found
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the allegation of infliction of great bodily injury to be untrue. The trial court sentenced
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Rodriguez to state prison for a term of 40 years to life.

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Rodriguez unsuccessfully appealed his conviction to the California Court of Appeal,
and the California Supreme Court denied review on February 13, 2002.

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Rodriguez subsequently filed a state habeas petition with the Alameda County

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Superior Court, which the court denied. He then filed a habeas petition with the California

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Court of Appeal, and that court issued a postcard denial. On February 4, 2004, the

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California Supreme Court also summarily denied Rodriguez’s petition for state habeas

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relief.

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For the Northern District of California

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Rodriguez then filed a petition for federal habeas relief with this court on
June 7, 2004.
A.

Factual Background
On the evening of March 3, 1998, in Oakland, California, Rodriguez shot and killed

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Frederick Walker (“Walker”). Prior to the shooting, a group of neighborhood youths

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including Roy Ramsey, Vonree Alberty, Kenneth Jackson, Thurston Breshell, Marcus

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Hawkins, and Albert Bagwell (referred to collectively as the “Melrose group”) were hanging

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out in and around a car (the “Jackson-Alberty car”) on the 4700 block of Melrose Avenue,

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also the block on which Rodriguez lived, near Hawkins’ house. Shortly before 6:00 p.m., a

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station wagon with approximately nine or ten African-American teenagers1 (the “Walker

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group” or “Walker car”) drove down Melrose Avenue, from 47th to 48th Avenues and made

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a u-turn on 48th Avenue. The teenagers in the Walker group were not from the

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neighborhood. Among others, the Walker group included the driver, Damon Brown;

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Brown’s cousin, Ferrari Johnson; the victim, Frederick Walker; and the victim’s brother,

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David Walker.

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The Walker station wagon first parked near a stop sign on 48th Avenue. The

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occupants of the Walker car then exited the vehicle and approached the Melrose group.

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After the Walker group converged on the Melrose group, the groups then split. Ramsey, a

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Witnesses gave varying numbers, and it was never established exactly how many
people comprised the Walker group.
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member of the Melrose group, walked down the street and was subsequently surrounded

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by members of the Walker group. Breshell, Alberty, and Jackson, other members of the

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Melrose group, remained in or around the Jackson-Alberty car and were also approached

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by members of the Walker group.

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The timing of the subsequent events is a bit unclear. Members of the Walker group

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“relieved” Ramsey of three dime bags of marijuana.2 Around the same time, a member of

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the Walker group went back to their station wagon, and pulled it alongside, apparently

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double-parking next to the Jackson-Alberty car. Two members of the Walker group then

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began hassling Breshell.
After the Walker group took the marijuana from Ramsey, Ramsey walked across the

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street to Rodriguez’s house, and went up to Rodriguez, who had exited his house after

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hearing loud noises. Ramsey told Rodriguez that he had just been robbed by the Walker

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group. At this point, Rodriguez observed a tussle between Breshell and members of the

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Walker group. Ramsey subsequently gave Rodriguez a gun, and Rodriguez then shot up

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in the air several times in an attempt to scare away the Walker group. One of these shots

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hit the victim, Walker, in the head and killed him.

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B.

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Trial Proceedings
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Prosecution Key Witnesses
a.

Jewel Marshall

The prosecution called Jewel Marshall, a neighbor of Rodriguez’s who lived on

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Melrose Avenue. Marshall testified that he was at home on the evening of the shooting,

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and that after hearing loud voices outside, he looked out of his front window to see what

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was going on. Marshall testified that he observed at least two African-American teenagers

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standing near a station wagon parked in front of his driveway in the street, and that he saw

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another group of teenagers standing by the stairs to his neighbor Marcus Hawkins’ house,

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Ramsey testified at a preliminary hearing that he was robbed, but the prosecution
argued at trial that there was no admissible evidence that a robbery occurred, based largely
on the fact that the defense did not call Ramsey to testify at trial.
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including Hawkins, Bagwell, and Ramsey.
When Marshall first looked out the window, he testified that there did not seem to be

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a fight or an altercation between the two groups of people, and he did not see any

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weapons, so he left his window and went about his business. However, he subsequently

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heard gunshots and then went back to his window. While he was away from the window,

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Marshall could still hear that there was a conversation outside, but reported that the tone

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subsequently increased in urgency.

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When he went back to the window after hearing the shots, he saw the teenagers
that had been surrounding the Walker station wagon run away at the sound of the gunfire.
Marshall testified that he observed Rodriguez shooting the gun. Marshall also observed

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one of the fleeing teenagers fall to the ground in the street. After the shooting, Marshall

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witnessed a fist fight break out among the Walker group and the Melrose group.

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b.

Armando Salazar

The prosecution also called Armando Salazar, another Melrose Avenue resident,

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and a neighbor of Rodriguez’s. Salazar arrived home at 5:45 p.m. on March 3, 1998.

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While he was still in his vehicle in front of his house, he noticed the Walker group’s station

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wagon parked in front of his neighbor and prosecution witness, Marshall’s house, and he

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subsequently saw nine or ten African-American teenagers jump out of the station wagon.

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At that point, Salazar entered his home because he had never seen the teenagers before,

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and told his wife to collect their kids from the backyard because the strange teenagers in

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the street made him nervous. However, Salazar testified that the teenagers were not

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fighting at that time.

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When the Walker teenagers exited the station wagon, Salazar saw that one of them

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had a beer and another one urinated on a lawn. He testified that the teenagers were loud,

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but that he did not see any weapons on the Walker group, and that he did not observe the

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group fighting before the shots were fired. Salazar did not observe an altercation until he

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heard a gunshot three or four minutes later. At that point, he looked out of his kitchen

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window and observed Rodriguez holding a gun. When Rodriguez finished shooting, he

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turned and walked back into his house.

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Salazar testified that he saw the teenagers run away when the shooting started.
Subsequently, the members of the two teenage groups started fighting.
c.

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Officer Morse

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Officer Morse participated in pulling over the Walker station wagon containing

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Walker group members Ferrari Johnson and Damion Brown after the shooting. He testified

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that the officers did not find a weapon in the Walker car.

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Defense Witnesses

Rodriguez’s defense was that he fired the gun to protect his friends from members

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2.

of the Walker group, who were robbing them. Only Rodriguez and Breshell testified for the

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defense.
a.

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Thurston Breshell

Breshell testified that he was present on the 4700 block of Melrose Avenue at the

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time of the March 3, 1998 shooting. He attested that he and Ramsey were standing

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outside of a car occupied by Alberty and Jackson when they saw the Walker station wagon

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drive by.

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Breshell testified that the car drove by slowly, and that he observed someone who

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appeared to be laying down suspiciously in the back seat of the car. Breshell then saw the

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Walker car make a u-turn on 48th Avenue and park near the stop sign at the corner. At

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that point, Breshell testified that five people got out of the station wagon, broke a wine

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bottle, talked to Hawkins, and approached the Melrose group. According to Breshell, their

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group then split: one group remained at the Jackson-Alberty car and the other group

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moved in front of Marshall’s house.

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Then, a member of the Walker group went back to their station wagon and pulled it

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“halfway on the side of the” Jackson-Alberty car. Breshell described the atmosphere as

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“hostile” when the Walker car pulled alongside the Jackson-Alberty car. After pulling to an

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abrupt stop, the driver of the Walker car exited the car and talked loudly to Breshell. At this

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point, Breshell saw Ramsey walking towards Rodriguez’s house. Breshell did not see

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Ramsey get robbed.

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The Walker group then grabbed Breshell and tried to get into his pockets. As

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Breshell was trying to fight off two members of the Walker group, Alberty and Jackson

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drove away in their car. Breshell testified that he saw a third member of the Walker group,

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who might have been the victim, approach him, and also saw this person reach in his jacket

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for a gun. Breshell testified that he saw the handle of a gun tucked into the waistband of

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this person’s pants. Breshell punched this approaching member of the Walker group

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before he could get the gun out of his pants.3
Breshell then heard a gunshot and ran away. He ran towards Rodriguez’s house.

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The members of the Walker group who had been attacking Breshell then drove away in

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their station wagon. Breshell testified that he thought Rodriguez was protecting him

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(Breshell) when he fired the shots, including the one that hit Walker.

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Breshell testified that he then went inside Rodriguez’s house and was there when

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the police arrived. Breshell stated that he never talked to the police even though he had

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been personally involved in the altercation. He explained that the police make him

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nervous.

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b.

Rodriguez

Rodriguez testified that he was in his bedroom between 5:00 and 6:00 p.m. on

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March 3, 1998, when he heard loud noises from outside the house. He left his bedroom

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and his house, and walked down toward the street on Melrose Avenue to investigate.

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When he got to the street, he saw “a lot of commotion.” Rodriguez observed some

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people whom he recognized, including Breshell, Ramsey, Jackson, Hawkins, and Bagwell,

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and five other people that he did not recognize. He did not see any fighting when he first

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The court notes that at trial, the prosecution emphatically argued that the Walker group
had no guns or weapons.

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observed the large group of people.
Rodriguez testified that Ramsey crossed the street and approached him, as

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Rodriguez kept an eye on the altercation between the Melrose group and the Walker group.

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Rodriguez testified that Ramsey then told him that he had just been robbed. 4

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Rodriguez then observed the Walker group start to “go[] through [Breshell’s]

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pockets,” and saw Breshell struggling with the Walker group. Ramsey shouted to the

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Walker group to leave Breshell alone because Ramsey was the one with marijuana.

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Rodriguez knew that Ramsey had a gun and asked Ramsey why he had not used it

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against the Walker group as they were robbing him. Rodriguez then told Ramsey to shoot
the gun in the air to scare off the Walker group, but Ramsey instead pushed the gun into

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Rodriguez’s hands. Rodriguez saw the Walker group crossing the street toward him, and

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he twice fired the gun into the air. Two teenagers retreated, but two continued to hassle

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Breshell. Rodriguez told the remaining two to “get off” Breshell, and when they did not,

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Rodriguez fired the gun three more times at approximately a twenty-degree angle.

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Rodriguez conceded that he never observed a gun on any member of the Walker

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group, but nevertheless testified that he shot the gun to protect Breshell. He thought that

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the altercation between the Walker group and the Melrose group was “more than a fist

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fight.”

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3.

Prosecution Rebuttal

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In rebuttal, the prosecution called two officers to testify in order to call into question

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Breshell’s credibility. Officer Bardsley, the officer who canvassed the neighborhood after

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the shooting to get statements from potential witnesses, testified that he entered

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Rodriguez’s home to interview people at the residence and he did not observe any African-

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American males at that house. In other words, Bardsley did not see Breshell, who had

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earlier testified that he was present when the police came to Rodriguez’s house. Sergeant

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Because it was hearsay, the trial court admitted Rodriguez’s testimony regarding what
Ramsey told him not for the truth but to explain Rodriguez’s state of mind, and the jury was
given a limiting instruction to that effect.
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Holloman similarly testified that he did not see Breshell when he conducted interviews at

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Rodriguez’s house.

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4.

Closing Arguments

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During closing arguments, the prosecution conceded that the case “made no sense,”

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and argued that the victim was dead because of “a senseless act.” Although it did not offer

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a motive for the shooting, the prosecution emphasized that the shooting was not justified or

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excusable, nor did it constitute a crime committed in the heat of passion or a case of

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imperfect self-defense.
The defense, on the other hand, argued that the use of deadly force was justified

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because Rodriguez was defending Breshell, who was being robbed. In her closing

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argument, counsel argued that Rodriguez had just been told by Ramsey that Ramsey had

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been robbed right before he approached Rodriguez, immediately prior to Rodriguez

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personally observing his friend, Breshell, in an altercation with two members of the Walker

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group, who appeared to be robbing Breshell.

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C.

Federal Habeas Proceedings

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This case has a somewhat long and convoluted history before this court.

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On June 7, 2004, Rodriguez filed his original pro se habeas corpus petition in this

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court. The handwritten petition appeared to include two grounds for relief: (1) a claim

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based on trial counsel’s failure to investigate, and (2) a claim that the state trial court erred

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in giving a jury instruction. In addition to his handwritten petition, Rodriguez attached eight

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exhibits, A-H, which he had previously submitted to the California Supreme Court with his

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state habeas petition.

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On July 6, 2004, this court issued an order dismissing the petition with leave to

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amend, noting that it could not determine the nature of the claims from the petition.

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Subsequently, on August 11, 2004, the court received a letter from William Foskett

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(“Foskett”), an investigator who had previously been assigned to Rodriguez’s case by the

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Alameda County Public Defender’s office. As background, Foskett noted that he had

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worked as an officer for the Oakland Police Department for twenty years, subsequently

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worked as an investigator for the Alameda County Public Defender’s Office, and later

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earned a law degree. Foskett’s letter to the court detailed his concerns about the way

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Rodriguez’s case had been handled by his trial counsel, Pauline Weaver. Foskett asked

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the court to pay special attention to Rodriguez’s case, and requested that the court appoint

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counsel for him.

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On October 26, 2004, the court issued an order granting an extension of time for

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Rodriguez to amend the original petition. The court noted that its prior order had been

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returned as undeliverable, and the clerk sent another copy of the prior July 6, 2004 order to
the address previously supplied by Rodriguez. Additionally, the court asked that another

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copy be sent to Foskett to ensure that Rodriguez would receive it.

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On November 1, 2004, in response to the order, Foskett sent another letter to the

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court providing an updated address for Rodriguez. Foskett also stated in the letter that

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Rodriguez did not have the intellectual capacity to prosecute his habeas case and again

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requested the court to appoint counsel for Rodriguez.

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On November 24, 2004, Rodriguez, still pro se, filed an amended petition. In the
amended petition, Rodriguez asserted that he was entitled to relief based on claims that:

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(1) his counsel was ineffective in failing to hire an investigator to investigate the facts

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of his case, as detailed in a letter from Foskett;

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(2) the trial court erred in giving incomplete instructions and in not giving him a copy

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of one of the instructions; and

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(3) his trial counsel had a conflict of interest because Rodriguez had discharged her

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earlier in the case.

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Rodriguez attached the same typewritten document that accompanied his original

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petition. Additionally, he included another letter from Foskett detailing the weaknesses that

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Foskett perceived in the defense’s pretrial investigation of Rodriguez’s case.

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On December 12, 2004, the court issued an order to show cause requiring the state

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to respond to issues one and three, but dismissed the second issue regarding the jury

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instructions because it did not present a federal constitutional issue. On June 20, 2005, the

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state filed a motion to dismiss for failure to exhaust, in which it argued that one of the two

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remaining claims - that regarding Rodriguez’s trial counsel’s alleged conflict of interest -

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was unexhausted in state court. Therefore, the state argued that the case should be

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dismissed until Rodriguez exhausted the conflict of interest claim in state court.

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Rather than opposing the state’s motion to dismiss, Rodriguez sent the court two

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letters, one on August 25, 2005, and another on December 22, 2005, requesting a status

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report for his case. Additionally, on January 3, 2006, Foskett wrote another letter to the

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court on behalf of Rodriguez’s mother requesting a status report.
Rodriguez ultimately failed to oppose the state’s motion to dismiss, and on March

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13, 2006, the court granted the state’s motion to dismiss the conflict of interest claim as

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unexhausted with leave to amend. In light of Rodriguez’s pro se status, the court carefully

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delineated Rodriguez’s three options going forward, noting that he could: (1) voluntarily

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dismiss the case and exhaust the unexhausted claim in state court; (2) amend the petition

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to delete the unexhausted issue so that the court could proceed on the one exhausted

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issue; or (3) ask the court for a stay of the federal proceedings to afford him the opportunity

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to exhaust the second claim in state court.

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On March 27, 2006, Rodriguez submitted a letter to the court requesting to amend

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his petition to remove the unexhausted claim regarding his trial counsel’s alleged conflict of

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interest. In a March 30, 2006 order, the court treated Rodriguez’s letter as an adequate

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amendment, deemed the petition amended, and directed the state to file an answer to

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Rodriguez’s petition within sixty days. Accordingly, only the ineffective assistance of

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counsel claim remained.

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After the state filed its answer and the state court record on May 2, 2006, Rodriguez

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filed a two-page handwritten response on June 8, 2006, that purported to be his traverse.

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In support, Rodriguez appended another letter from Foskett. Foskett had apparently

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reviewed the state’s answer and drafted a letter to Rodriguez analyzing the state’s

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arguments and advising him how to proceed. Rodriguez’s traverse paraphrased Foskett’s

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letter.

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On May 28, 2006, Rodriguez filed a motion requesting the court to appoint him

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counsel. Rodriguez stated that he did not have the requisite legal knowledge to adequately

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proceed with his habeas petition. Subsequently, on January 26, 2007, the court received

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another letter from Foskett. This letter, similar to many of the previous letters, explained

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Foskett’s role in the original investigation of the case and Foskett’s opinions about the

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quality of the defense. Additionally, Foskett reiterated his belief that the court should

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appoint Rodriguez counsel.
On March 1, 2007, the court granted Rodriguez’s request for appointment of counsel

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and stayed the habeas proceedings pending such appointment. On April 26, 2007, after

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counsel was appointed for Rodriguez, the court issued an order for supplemental briefing

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by Rodriguez, allowing newly appointed counsel to supplement the traverse that Rodriguez

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had previously filed pro se because the original traverse was inadequate.

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On September 17, 2007, with the assistance of his appointed counsel, Rodriguez

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filed a supplemental traverse and a request for an evidentiary hearing. Rodriguez

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elaborated on his ineffective assistance of counsel claim, asserting that his trial counsel

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was ineffective for (1) failing to present testimony from witnesses who were located and

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interviewed by Investigator Foskett prior to trial, who he claimed would have supported his

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defense that the homicide was justified, including Roy Ramsey, Elaine Caufield, and

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Dennis Lyons; and (2) for failing to locate and investigate additional witnesses who were

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available and who would have testified that Rodriguez’s role in the homicide was justified,

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including Kenneth Jackson and Vonree Alberty.

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Rodriguez argued that the additional witnesses would have substantiated the

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defense’s position that the victim and/or the victim’s friends were committing a robbery or

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robberies at the time the victim was shot. Accordingly, Rodriguez contended that the

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additional witnesses would have supported his defense at trial that the homicide was

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justified in that he acted reasonably in the defense of another, or alternatively, that the

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evidence would have supported a conviction on the lesser-included offense of voluntary

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manslaughter by suggesting to the jury that Rodriguez acted honestly but unreasonably in

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the defense of another or in the heat of passion.

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In support, Rodriguez attached six exhibits to his supplemental traverse, which were

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not previously a part of this court’s record, nor were they a part of the record before the

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California Supreme Court. Those exhibits included: (1) a September 9, 2007 declaration

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from Scott Whitney; (2) a September 10, 2007 declaration from Vonree Alberty; (3) a
September 16, 2007 declaration from Kenneth Jackson; (4) a May 3, 1999 interview report

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of Dennis Lyons; (5) a September 16, 2007 declaration from Foskett; and (6) a May 7,

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1999 interview report for Elaine Caufield.5

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On September 26, 2007, the court issued an order for further briefing and for

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additional documents from the state court record. The court noted that in his petition and

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the papers filed to date, Rodriguez had contended that he received ineffective assistance of

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counsel based on his trial counsel’s failure to adequately investigate the facts of his case, a

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claim which had been detailed in Foskett’s supporting letters. However, in his

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supplemental traverse, the court noted that Rodriguez argued as well that trial counsel’s

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failure to present evidence at trial (including witnesses who had been interviewed)

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constituted ineffective assistance of counsel. In an effort to determine whether the issue,

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as framed by Rodriguez in his supplemental traverse, was exhausted before the state

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courts, the court ordered the state to submit the actual order from the California Court of

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Appeal and a copy of Rodriguez’s February 7, 2003 state habeas petition. The court

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further afforded the state the opportunity to respond to Rodriguez’s supplemental traverse

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and request for an evidentiary hearing.

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On November 11, 2007, the state filed another motion to dismiss Rodriguez’s

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Caufield has since passed away.
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habeas petition as untimely and unexhausted. It argued that as framed by Rodriguez’s

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supplemental traverse, his ineffective assistance of counsel claim was unexhausted, and

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that to the extent he sought to raise a new, unexhausted claim, it was untimely because it

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fell outside of the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) statute of

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limitations.

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On March 4, 2008, following Rodriguez’s opposition and the state’s reply, the court

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stayed the federal habeas proceedings so that Rodriguez could return to state court to fully

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exhaust the claim. In concluding that a stay was appropriate, the court held that the new

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evidence and arguments presented by Rodriguez in his supplemental traverse, although
related to his claim before the state court, placed his ineffective assistance of counsel claim

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in a significantly stronger evidentiary posture. Specifically, the court noted that only two

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witnesses testified at trial in support of Rodriguez’s position that the victim was shot in the

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defense of others who were being robbed by the victim and the victim’s friends at the time

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of the shooting - Rodriguez and Thurston Breshell. Four of the supplemental exhibits

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submitted to this court - the declarations and interview memoranda from Alberty, Jackson,

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Caufield, and Lyons - corroborated Rodriguez’s and Breshell’s testimony and provided

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additional details regarding the scene of the crime, including the alleged robberies,

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Rodriguez’s conduct, and the conduct of the numerous other witnesses present that day.

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The court noted that those exhibits also corroborated the preliminary hearing testimony of

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Roy Ramsey, whose failure to testify at trial provided the underlying factual basis for

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Rodriguez’s state court ineffective assistance of counsel claim.

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Additionally, in granting the stay, the court noted that following exhaustion,

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Rodriguez would be permitted to amend his federal habeas petition to include the newly

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exhausted claim. In support, it concluded that because the claim contained in his pro se

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amended federal petition and the claim detailed in his supplemental traverse were tied to a

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common core of operative facts, the exhausted claim would relate back to the timely-filed

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claim stated in Rodriguez’s November 24, 2004 amended habeas petition.

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Rodriguez subsequently presented the claim to the California Supreme Court, along

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with all of the additional exhibits that he filed with his supplemental traverse before this

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court. On July 15, 2009, the California Supreme Court summarily denied his habeas

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petition.

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On July 24, 2009, this court reopened the case, and noted that the state had not

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previously had an opportunity to address Rodriguez’s supplemental traverse on the merits.

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The court thus afforded the state an opportunity to file a supplemental opposition brief, and

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for Rodriguez to file a supplemental reply, which both parties did.
ISSUE

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Rodriguez claims that his trial counsel provided ineffective assistance of counsel

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when she failed to adequately investigate and present testimony from numerous additional

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witnesses who would have supported Rodriguez’s defense.

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STANDARD OF REVIEW

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This court may entertain a petition for writ of habeas corpus “on behalf of a person

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in custody pursuant to the judgment of a state court only on the ground that he is in custody

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in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §

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2254(a). Because the petition in this case was filed after the effective date of the AEDPA,

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the provisions of that act apply here. See Lindh v. Murphy, 521 U.S. 320, 327 (1997).

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Under the AEDPA, a district court may not grant a petition challenging a state conviction or

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sentence on the basis of a claim that was reviewed on the merits in state court unless the

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state court’s adjudication of the claim: “(1) resulted in a decision that was contrary to, or

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involved an unreasonable application of, clearly established Federal law, as determined by

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the Supreme Court of the United States; or (2) resulted in a decision that was based on an

24

unreasonable determination of the facts in light of the evidence presented in the State court

25

proceeding.” 28 U.S.C. § 2254 (d).

26
27

A state court decision is “contrary to” Supreme Court authority, falling within the first
clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to that

28
14

1

reached by [the Supreme] Court on a question of law or if the state court decided a case

2

differently than [the Supreme] Court has on a set of materially indistinguishable facts.”

3

Williams v. Taylor, 529 U.S. 362, 412-413 (2000). “Clearly established federal law” under §

4

2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at

5

the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72

6

(2003). This “clearly established” law “refers to the holdings, as opposed to the dicta, of

7

[Supreme] Court decisions as of the time of the relevant state court decision.” Id.

8
9

“Under the ‘unreasonable application’ clause” of § 2254(d)(1), a federal habeas court
may grant the writ if the state court identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that principle to the facts of the

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10

prisoner’s case.” Id. at 74. However, this standard “requires the state court decision to be

12

more than incorrect or erroneous.” Id. For the federal court to grant habeas relief, the

13

state court’s application of the Supreme Court authority must be “objectively unreasonable.”

14

Id. at 74-75. The “objectively unreasonable” standard is different from the “clear error”

15

standard in that “the gloss of clear error fails to give proper deference to state courts by

16

conflating error (even clear error) with unreasonableness.” Id. at 75; see also Clark v.

17

Murphy, 331 F.3d 1062, 1068 (9th Cir. 2003). Therefore, “[i]t is not enough that a habeas

18

court, in its independent review of the legal question, is left with a firm conviction that the

19

state court was erroneous . . . Rather, the habeas court must conclude that the state

20

court’s application of federal law was objectively unreasonable.” Andrade, 538 U.S. at 75;

21

see also Clark, 331 F.3d at 1068.

22

As for state court findings of fact, under § 2254(d)(2), a federal court may not grant a

23

habeas petition by a state prisoner unless the adjudication of a claim on the merits by a

24

state court resulted in a decision that was based on an unreasonable determination of the

25

facts in light of the evidence presented in the state court proceeding. 28 U.S.C. §

26

2254(d)(2). The “clearly erroneous” standard of unreasonableness that applies in

27

determining the “unreasonable application” of federal law under § 2254(d)(1) also applies in

28
15

1

determining the “unreasonable determination of facts in light of the evidence” under §

2

2254(d)(2). See Torres v . Prunty, 223 F.3d 1103, 1107-1108 (9th Cir. 2000). To grant

3

relief under 2254(d)(2), a federal court must be “left with a firm conviction that the

4

determination made by the state court was wrong and that the one [petitioner] urges was

5

correct.” Id. at 1108.
However, when the state court decision does not articulate the rationale for its

6
7

determination or does not analyze the claim under federal constitutional law, a review of

8

that court’s application of clearly established federal law is not possible. See Delgado v.

9

Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). When confronted with such a decision, a
federal court must conduct an independent review of the record and the relevant federal

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10

law to determine whether the state court’s decision was “contrary to, or involved an

12

unreasonable application of, “clearly established federal law.” Id. at 982.
When a state court does not furnish a basis for its reasoning, we have no
basis other than the record for knowing whether the state court correctly
identified the governing legal principle or was extending the principle into a
new context. . . .[A]lthough we cannot undertake our review by analyzing the
basis for the state court’s decision, we can view it through the ‘objectively
reasonable’ lens ground by Williams [, 529 U.S. 362]. . . . Federal habeas
review is not de novo when the state court does not supply reasoning for its
decision, but an independent review of the record is required to determine
whether the state court clearly erred in its application of controlling federal
law. . . . Only by that examination may we determine whether the state
court’s decision was objectively reasonable.

13
14
15
16
17
18
19

Id.
DISCUSSION

20
21
22

A.

Supplemental Exhibits
As noted, Rodriguez submitted numerous exhibits with his federal habeas petition

23

and supplemental traverse that were also submitted to, and which this court must presume

24

to have been considered by, the California Supreme Court in conjunction with his May 27,

25

2003, and November 10, 2008 state habeas petitions. Because all of the exhibits in the

26

record in this case were also in the record before the state courts that adjudicated

27

Rodriguez’s claim on the merits, this court’s review and consideration of those exhibits is in

28
16

1

accordance with the United States Supreme Court's recent decision in Cullen v. Pinholster.

2

See 131 S. Ct. 1388,1398 (2001) (clarifying that the record under review in federal habeas

3

proceedings is limited to the record that was before the state court that adjudicated the

4

petitioner's claim on the merits).

5

Among these were Exhibits A-F, which are briefly described below.6

6

i.

7

Rodriguez argues that given that his defense counsel was unsuccessful obtaining

Exh. A:

Transcript of Ramsey’s Preliminary Hearing Testimony

8

Ramsey’s testimony at trial, then, at a minimum, she should have sought to introduce

9

Ramsey’s preliminary hearing testimony. This exhibit is the transcript of that testimony.
ii.

Exh. B:

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12
13
14

Interview with Ramsey
This is a transcript of an interview that the police conducted with Ramsey following
the shooting.
iii.

Exh. C:

15
16

February 18, 1999 Transcript of Undated Law Enforcement

May 5, 1999 Report of Interview with Roy Ramsey by
Investigator Foskett

Foskett provided this report to Rodriguez’s trial counsel. In the report, he evaluates

17

Ramsey’s demeanor, which he describes as “ok [] for a dope dealer.” The report also

18

states that the Walker group robbed Ramsey, and that Ramsey observed the Walker group

19

with at least four guns.

20

iv.

21
22

Exh. D:

April 17, 2003 Declaration from Petitioner Salvador
Rodriguez

This declaration was initially submitted with Rodriguez’s state habeas petitions.

23
24
25
26
27

6

Rodriguez also filed two additional exhibits, G and H, with his state and federal court
habeas petitions. Exhibit G is a copy of the Alameda County Superior Court’s October 15,
2002 minute order denying his habeas petition. Exhibit H is a printout of the California Court
of Appeal’s February 13, 2003 denial of his habeas petition.

28
17

1

v.

Exh. E:

Investigator Foskett’s Log of Handwritten Notes re:

2

Investigation of Rodriguez’s Case

3

Foskett’s notes catalogue his efforts to contact various witnesses prior to trial.

4

vi.

5

Gillies was Rodriguez’s attorney on direct appeal in the state appellate courts.

Exh. F:

May 24, 2003 Declaration from Sandra Gillies

6

Among other things, Gillies attests that she inquired of Rodriguez’s trial attorney, Pauline

7

Weaver, regarding why Weaver did not seek to introduce Ramsey’s preliminary hearing

8

testimony at trial. Gillies states that Weaver told her that Ramsey’s testimony seemed “too

9

thin” to have had an impact on the jury.
In addition to the above exhibits, Rodriguez also attached six exhibits to his

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10

September 17, 2007 supplemental traverse before this court, which he subsequently

12

submitted to the California Supreme Court with his November 10, 2008 state habeas

13

petition.

14

Those exhibits included the following:

15

vii.

16

Whitney is a private investigator hired by Rodriguez’s appointed federal habeas

Exhibit AA: September 16, 2007 Declaration of Scott Whitney7

17

counsel, Linda Fullerton. His declaration details how he contacted and interviewed two

18

witnesses whom Rodriguez’s trial counsel failed to locate and interview, Vonree Alberty

19

and Kenneth Jackson. Whitney’s interviews with Alberty and Jackson are detailed in the

20

declarations located at Exhibits BB and CC.

21

viii.

Exhibit BB: September 10, 2007 Declaration of Vonree Alberty

22

As noted, Scott Whitney, the investigator hired by Rodriguez’s habeas counsel,

23

obtained a statement from Alberty on September 10, 2007. Alberty was present at the

24

scene of the shooting.

25
26
7

27
28

These exhibits were labeled in the same manner as the prior eight exhibits. In order
to distinguish the latter-filed exhibits from the former ones, the court has referred to the latterfiled exhibits as Exhibits AA, BB, CC, DD, EE, and FF.
18

1

ix.

Exhibit CC: September 16, 2007 Declaration of Kenneth Jackson

2

As noted, Scott Whitney, the investigator hired by Rodriguez’s habeas counsel,

3

obtained a statement from Jackson on September 16, 2007. Jackson was present at the

4

scene of the shooting.

5

x.

6

Exhibit DD: May 3, 1999 Interview Report from Investigator Foskett re:
Dennis Lyons

7

This is a report from Foskett regarding his pretrial interview with witness Dennis

8

Lyons. Briefly, the report states that Lyons could testify that the Walker group was armed

9

and committing robberies at the time of the shooting.
xi.

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10

This declaration details deficiencies in Rodriguez’s trial counsel’s performance that

12

Foskett observed and reported. Specifically, Foskett states that he interviewed Lyons and

13

Caufield, but that neither testified at trial. Additionally, Foskett describes how defense

14

counsel instructed him to cease his efforts to subpoena Ramsey and Lyons for trial.

15

Finally, Foskett states that, during the course of the investigation, he brought his concerns

16

about defense counsel’s performance to the attention of the Assistant Public Defender but

17

that no reassignments were made based on his complaint.

18

xii.

Exhibit EE: September 16, 2007 Declaration from Walter Foskett

Exhibit FF: May 7, 1999 Interview Report from Walter Foskett re: Elaine

19

Caufield
This is a report from Foskett regarding his interview with witness Elaine Caufield.

20
21

The report states that Caufield heard loud voices coming from the street. She then went

22

outside and witnessed a fight and some shooting. Specifically, she noted that one of the

23

males she observed was armed, but she wasn’t clear regarding whether he was a member

24

of the Walker group or the Melrose group.

25

B.

Summary of Evidence Not Presented at Trial

26

1.

Roy Ramsey

27

Ramsey was interviewed by both Foskett and the police several times prior to

28
19

1

Rodriguez’s trial, and also testified at the preliminary hearing. As noted, in spite of this, he

2

did not testify at trial.

3

On June 17, 1998, Ramsey testified at the preliminary hearing as follows. On March

4

3, 1998, he was hanging out on the sidewalk on Melrose Avenue with his friends, Breshell

5

and Alberty. A station wagon (the Walker station wagon) drove past the Melrose group,

6

made a u-turn and parked on 48th Avenue. Eight to ten African-American teenagers exited

7

the station wagon and approached the Melrose group. The Walker group hovered near the

8

Melrose group without saying anything for approximately five minutes.

9

The Walker group then began demanding money from members of the Melrose
group, and going through the Melrose group members’ pockets. Ramsey gave the Walker

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group three bags of marijuana. Ramsey, however, did not give the Walker group the

12

“couple hundred” dollars he had on him. Ramsey did not see any weapons on the Walker

13

group. After he gave the Walker group his marijuana, Ramsey walked across the street to

14

where Rodriguez was standing, and told Rodriguez that he had just been robbed.

15

Ramsey then yelled at the Walker group to leave Jackson, another member of the

16

Melrose group, alone. At that point, the altercation between the Walker group and

17

Jackson, Breshell, and Alberty heated up. Jackson and Breshell were trading punches with

18

the Walker group.

19

Ramsey’s gun was somehow transferred from Ramsey to Rodriguez, and Rodriguez

20

shot the gun in the air five times. When Rodriguez finished shooting, he gave the gun back

21

to Ramsey. Ramsey then disposed of the gun in a trash can three blocks away.

22

Prior to trial, Foskett was unable to easily locate Ramsey. After phone calls, visits to

23

Ramsey’s prior addresses, and interviews with Ramsey’s friends and family, it became

24

obvious that Ramsey was trying to evade service of the subpoena. Rodriguez’s trial

25

counsel then instructed Foskett to discontinue his efforts to subpoena Ramsey.

26
27

His trial counsel also decided not to seek to introduce Ramsey’s preliminary hearing
testimony at trial. As noted, she later advised Rodriguez’s appellate counsel that she made

28
20

1

this decision because she viewed the preliminary hearing testimony as “too thin.”

2

2.

Vonree Alberty

3

Alberty did not testify at trial and was not interviewed prior to trial.

4

In his declaration, Alberty stated that he was hanging out on Melrose Avenue with

5

Jackson and Breshell on the day of the shooting. Jackson and Alberty were in the car

6

while Breshell stood next to the car on the sidewalk. Ramsey was on Melrose Avenue, but

7

was not necessarily in or next to the car at the time.

8

Alberty observed the Walker car drive by with approximately ten people in it. He lost

9

sight of the car when it turned onto 48th Avenue. A little later, Alberty saw the same group
of people walking down the sidewalk towards Jackson’s car. Alberty thought that

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something was suspicious so he got out of the car. The two groups exchanged small talk,

12

but the Walker group seemed to be acting suspiciously to Alberty.

13

Alberty stated that Ramsey seemed to be avoiding the Walker group. After talking

14

with Alberty for a bit, the Walker group then started to walk away. Alberty got back in the

15

car with Jackson. However, the Walker group did not leave, but instead formed a huddle

16

and began whispering to each other. The Walker group then split into several groups: two

17

went to Jackson’s side of the car, two went to Breshell, two were on the sidewalk behind

18

Alberty’s car door, and three or four more were somewhere behind the car. Hawkins, a

19

member of the Melrose group, was also present at this point.

20

The Walker group then aggressively questioned Jackson and Alberty about whether

21

they had any drugs. Alberty stated that the Walker group was attempting to rob them.

22

Alberty did not see any weapons, though. Alberty then saw Breshell start pushing and

23

slapping the two guys surrounding him. Alberty was not sure whether they were fighting or

24

whether the Walker group was trying to rob Breshell. Alberty, who had since gotten back

25

into the car, then jumped out of the car again to help Breshell. He started fighting with the

26

Walker group.

27

Alberty heard four shots come from behind him. He believed these shots came from

28
21

1

the Walker group. Alberty then heard another four shots come from a different direction,

2

shot from a seemingly different caliber gun. Everyone dropped to the ground at the sound

3

of the gunshots. When the shots stopped, Alberty stood up and noticed someone on the

4

ground. He was laying in the area where Alberty believed the shots originated.

5
6

The Walker car then pulled up, members of the Walker group got into the car, and
the car left the scene. Similarly, Jackson and Alberty drove away from the scene.

7

Alberty also recounted a threatening experience he had with the Walker group a few

8

months after the shooting. Alberty was identified by members of the Walker group while he

9

was at a store. The members of the Walker group then followed Alberty to his
neighborhood. While Alberty hid in his sister’s house, he saw the members of the Walker

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group searching the neighborhood for him. Alberty stated that he observed all of the

12

members of the search group with guns.

13

3.

14

Jackson did not testify at trial and like Alberty, he also was not interviewed by the

15
16

Kenneth Jackson

defense prior to trial.
In his declaration, Jackson stated that prior to the shooting, he was hanging out,

17

sitting in his parked car on Melrose Avenue. Ramsey, Alberty, and Breshell were hanging

18

out with him in and around the car. At some point, Ramsey moved down the street, Alberty

19

got in the passenger side of Jackson’s car, and Breshell remained next to the car.

20

Jackson then saw a station wagon occupied by nine people, the Walker car, drive

21

by. As they drove by, Jackson noticed that they looked at the Melrose group aggressively.

22

The Walker car made a u-turn on 48th Avenue and parked near the corner. Hawkins,

23

another member of the Melrose group, was close to the Walker group as they got out of

24

their car at the corner.

25

The Walker group started to approach the Melrose group. Five members of the

26

Walker group surrounded Ramsey, two remained close to where they had parked their car,

27

and two more approached Jackson’s car. At this point, Jackson noticed that the members

28
22

1

of the Walker group were carrying open bottles of alcohol, and that the two who were

2

approaching Jackson’s car briefly stopped to urinate on a lawn. The members of the

3

Walker group who were not surrounding Ramsey appeared to Jackson to be acting as

4

lookouts.

5

In his car’s rearview mirror, Jackson saw Ramsey giving the contents of his pockets

6

to a member of the Walker group. Then, a member of the Walker group pulled the station

7

wagon into the middle of the street and parked it behind Jackson’s car. The driver got out

8

of the station wagon and aggressively approached Jackson. Jackson stated that he

9

understood this person’s actions as an attempt to rob him.
Jackson then heard Ramsey yell to the driver that Jackson didn’t have any drugs

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and that the Walker group should leave Jackson alone. Apparently in response, the driver

12

then approached Breshell instead. Other members of the Walker group who had

13

previously been acting as lookouts also approached Breshell at this point. Breshell then

14

punched the driver of the Walker group in the face.

15

Jackson and Alberty began to exit the car to help Breshell. However, as soon as

16

they got out of the car, Jackson heard a gunshot. Jackson ducked, got back in his car, and

17

started the engine. Jackson then heard two more shots. Alberty got back in the car, and

18

Jackson and Alberty drove away.

19

Jackson stated that he did not see any guns on the Walker group.

20

4.

21

Foskett interviewed Lyons prior to trial on May 3, 1999. Lyons stated that he was

Dennis Lyons

22

present when the shooting occurred on March 3, 1998. Lyons was hanging out with friends

23

on Melrose Avenue when the Walker station wagon approached. The station wagon

24

stopped, and “a lot of guys” exited the car. Lyons saw that at least one of them had a gun.

25

Lyons observed the Walker group rob Ramsey and then commence robbing

26

Breshell, but Breshell fought back. At this point, Lyons knew there was going to be trouble

27

because the Walker group was armed and committing robberies, so he started to walk

28
23

1

away. As he was walking away, he heard gunshots and turned to look back. He saw

2

people scattering. He then ran down the street to escape.
Lyons thought that the Walker group had done the shooting. He only learned later

3
4

that it was Rodriguez who shot the gun.
Foskett also had trouble finding Lyons to serve the subpoena for the January 11,

5
6

2000 court date. Similar to Ramsey, he made phone calls, visited Lyons’ prior addresses

7

and questioned Lyons’ friends and family. For reasons unexplained, Weaver later told

8

Foskett to cease efforts to locate Lyons prior to the time when the final prosecution witness

9

testified at Rodriguez’s trial.
5.

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Elaine Caufield

Foskett interviewed witness Elaine Caufield on May 7, 1999. Caufield, who lived on

12

Melrose Avenue, was sitting in her front room with her windows open on the day of the

13

shooting. At some point the voices became louder and the Walker car arrived and parked

14

in front of her house. Caufield went out onto the sidewalk. Five African-American males

15

exited the Walker car and approached the Melrose group. She then saw a fight and some

16

shooting. She observed one of the African-American males with a gun in his right hand.

17

After she heard two shots, she looked up and saw this individual put the gun behind his

18

back. The police arrived shortly thereafter but did not detain the person with the gun.

19

Instead, Caufield observed him get back into a car and leave the scene.
Prior to trial, defense counsel asked Foskett to find and subpoena Caufield. Foskett

20
21

located Caufield in the hospital. When Weaver learned that Caufield was in the hospital,

22

she instructed Foskett not to serve her with a subpoena, and Caufield therefore was not

23

called to testify at trial.

24

C.

Parties’ Arguments

25

As noted, Rodriguez does not challenge the fact that he shot Walker. Rather, he

26

challenges his trial attorney’s failure to adequately investigate witnesses and to present

27

evidence and testimony to the jury that he claims would have justified his use of deadly

28
24

1

force.

2

Rodriguez’s ineffective assistance claim concerns essentially three groups of

3

percipient witnesses discussed above: (1) Caufield and Lyons, witnesses who were

4

identified, interviewed, but not subpoenaed to testify at trial; (2) Jackson and Alberty,

5

witnesses who were never identified nor interviewed by the defense, and, therefore, were

6

never subpoenaed to testify at trial and (3) Ramsey, the witness who was identified,

7

interviewed, and testified at the preliminary hearing but who was not subpoenaed to testify

8

at trial and whose preliminary hearing testimony trial counsel did not seek to introduce at

9

trial.
Rodriguez argues that trial counsel’s failure to put these five additional witnesses on

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the stand during the trial constituted ineffective assistance of counsel. He contends that

12

the corroborative nature of these five witnesses’ potential testimony would have overcome

13

the prosecution’s efforts to discredit the testifying defense witnesses’ credibility. In short,

14

Rodriguez argues that the additional five witnesses’ cumulative testimony would have

15

presented a clearer picture of the aggressiveness and dangerousness of the Walker group

16

to the jury, thereby bolstering Rodriguez’s defense of justified use of deadly force.

17

Specifically, regarding the first group, Caufield and Lyons, Rodriguez’s trial counsel

18

asked Foskett to find and subpoena Lyons and Caufield on January 5, 2000 for a January

19

11, 2000 court date. Rodriguez asserts that the relatively short time period that Weaver

20

gave Foskett to find and serve these witnesses made it extremely difficult for Foskett to

21

successfully do his job. Moreover, trial counsel, without explanation, later ordered Foskett

22

to cease efforts to find and serve Lyons. Similarly, when trial counsel learned that Caufield

23

was in the hospital, she ordered Foskett to make no further attempts to subpoena Caufield;

24

she also did not make alternative arrangements to have Caufield’s testimony preserved

25

and admitted at trial. Additionally, Rodriguez argues that Weaver herself had not talked to

26

Lyons or Caufield, so it was impossible for her to evaluate the necessity of their testimony

27

at trial.

28
25

1

Rodriguez argues that testimony from Lyons and Caufield could have established

2

that the Walker group was armed and acting aggressively at the time of the shooting.

3

Rodriguez contends that even if these witnesses’ testimony was cumulative of defense

4

witness Breshell’s testimony, they were nevertheless necessary because the prosecution

5

called into question Breshell’s credibility and the defense needed to provide corroboration

6

of his testimony. Additionally, Rodriguez asserts Caufield and Lyons would have been

7

regarded as more objective than Breshell, the testifying defense witness, because they

8

were not friends with Rodriguez.

9

Regarding the second group, Jackson and Alberty, Rodriguez contends they would
have established that the Walker group was robbing Ramsey and Breshell when the

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shooting occurred. As for any suggestion that Jackson and Alberty could not be located at

12

the time of trial, Rodriguez argues that this is speculative and that there is no indication that

13

the defense ever attempted to locate Jackson or Alberty. Rodriguez further contends that

14

even if Jackson and Alberty’s testimony may have been cumulative to Breshell’s, it was

15

necessary to bolster Breshell’s credibility.

16

Regarding Ramsey, Rodriguez asserts that Weaver’s failure to introduce his

17

testimony left the defense without any corroborating evidence that Rodriguez in fact

18

thought that Breshell was being robbed. Rodriguez notes that Ramsey was the person

19

who advised him that he had been robbed, and that Ramsey also advised Rodriguez that

20

Breshell was being robbed. Because Ramsey never testified, Rodriguez argues the

21

defense never produced evidence at trial that Ramsey had actually been robbed before the

22

shooting, and this undermined the defense strategy of justified use of deadly force.

23

In sum, Rodriguez contends that the crux of his defense strategy was to convince

24

the jury that his friends were being robbed by the Walker group, and that the resulting

25

danger to his friends justified or mitigated his use of deadly force. According to Rodriguez,

26

trial counsel’s failure to investigate and present sufficient testimony to support the justified

27

use of deadly force defense allowed the prosecution to shift the focus of the case. Instead

28
26

1

of focusing on the threatening circumstances prior to the shooting, the trial focused on the

2

shooting itself. He argues that because justified use of deadly force was a central aspect

3

of his defense, “competent [defense] counsel would have made a strong effort to locate

4

and interview all percipient witnesses.”

5

In response, regarding the first group of witnesses, the state argues that Weaver’s

6

investigator, Foskett attempted to subpoena both Caufield and Lyons, but that he was

7

unsuccessful for various reasons. As for Caufield, the state asserts that Foskett located

8

Caufield in the hospital and that she was apparently incapable of coming to court.

9

Therefore, according to the state, it was reasonable for Weaver not to pursue Caufield as a
witness because of her general unavailability. Additionally, the state argues that the

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statement that Caufield gave to Foskett was unclear as to which group was armed.

12

Further, the state argues that even if the defense could establish through Caufield’s

13

testimony that the Walker group was armed, it would have been merely cumulative of

14

Breshell’s testimony.

15

Regarding Lyons, the state notes that the trial began on January 4, 2000, and that

16

Foskett made several attempts to locate Lyons between January 5 and January 9, 2000.

17

The state argues that reasonable counsel could conclude that even if Lyons could have

18

been found, it would have been too late in the course of the trial to adequately prepare him

19

to testify, and therefore it was reasonable for counsel to direct Foskett to cease his efforts

20

to find and serve Lyons. Additionally, the state argues that Lyon’s testimony would have

21

been cumulative of Breshell’s testimony and was, therefore, unnecessary for the defense.

22

Turning to Alberty and Jackson, the state argues that their current declarations do

23

not establish that Rodriguez’s trial counsel was ineffective for failing to locate them and call

24

them as witnesses. It contends that their willingness to cooperate with Rodriguez’s

25

defense at this point – ten years after the shooting – may not be indicative of their

26

willingness to cooperate at the time of trial. Furthermore, the state argues that their

27

testimony is merely cumulative of Breshell’s testimony and would not have changed the

28
27

1

outcome of the trial even if the defense had successfully located and subpoenaed them.

Ramsey, and that Foskett made several attempts to find Ramsey. The state suggests that

4

Ramsey was not successfully subpoenaed because he was actively evading service.

5

Therefore, it argues that the only real issue is Weaver’s failure to introduce Ramsey’s

6

preliminary hearing testimony at trial. It contends that counsel’s decision not to introduce

7

Ramsey’s preliminary hearing testimony was reasonable because Ramsey’s prior

8

testimony conflicted on several key points with Rodriguez’s trial testimony. As a result,

9

according to the state, the prosecution could have emphasized the conflicting nature of the

10

testimony, Ramsey’s bias as Rodriguez’s friend, and Ramsey’s criminal history to attack his

11
For the Northern District of California

Finally, regarding Ramsey, the state notes that Weaver did ask Foskett to subpoena

3

United States District Court

2

credibility. Furthermore, the state argues that the benefits of Ramsey’s prior testimony

12

would have been marginal, and asserts that it would have been merely cumulative.

13

D.

Analysis

14

1.

15

In order to prevail on a Sixth Amendment ineffective assistance of counsel claim, a

16

petitioner must establish two things. Strickland v. Washington, 466 U.S. 668, 686 (1984).

17

First, he must establish that counsel's performance was deficient, i.e., that it fell below an

18

"objective standard of reasonableness" under prevailing professional norms. Id. at 687-88.

19

Second, he must establish that he was prejudiced by counsel's deficient performance, i.e.,

20

that "there is a reasonable probability that, but for counsel's unprofessional errors, the

21

result of the proceeding would have been different." Id. at 694. A reasonable probability is

22

a probability sufficient to undermine confidence in the outcome. Id.

23

Legal Standards

A “doubly" deferential judicial review is appropriate in analyzing ineffective

24

assistance of counsel claims under § 2254. See Harrington v. Richter, 131 S. Ct. 770, 788

25

(2011); Premo v. Moore, 131 S. Ct. 733, 740 (2011) (same). When § 2254(d) applies, "the

26

question is not whether counsel's actions were reasonable. The question is whether there

27

is any reasonable argument that counsel satisfied Strickland's deferential standard."

28
28

1
2

Harrington, 131 S. Ct. at 788.
A showing that counsel's performance was deficient requires demonstrating that

3

counsel made errors so serious that counsel was not functioning as the "counsel"

4

guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at 687. The defendant

5

must show that counsel's representation fell below an objective standard of

6

reasonableness. See id. at 688. Judicial scrutiny of counsel's performance must be highly

7

deferential, and a court must indulge a strong presumption that counsel's conduct falls

8

within the wide range of reasonable professional assistance. See id. at 689. The United

9

States Supreme Court recently reaffirmed that

11
For the Northern District of California

United States District Court

10

12

[a]lthough courts may not indulge post hoc rationalizations for counsel's
decisionmaking that contradicts the available evidence of counsel's actions, .
. . neither may they insist counsel confirm every aspect of the strategic basis
for his or her actions. There is a strong presumption that counsel's attention
to certain issues to the exclusion of others reflects trial tactics rather than
sheer neglect.

13
Harrington, 131 S. Ct. at 789.
14
Second, the defendant must show that counsel's errors were so serious as to
15
deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at
16
688. The test for prejudice is not outcome-determinative, i.e., defendant need not show
17
that the deficient conduct more likely than not altered the outcome of the case; however, a
18
simple showing that the defense was impaired is also not sufficient. Id. at 693. The
19
defendant must show that there is a reasonable probability that, but for counsel's
20
unprofessional errors, the result of the proceeding would have been different; a reasonable
21
probability is a probability sufficient to undermine confidence in the outcome. Id. at 694.
22
Where the defendant is challenging his conviction, the appropriate question is “whether
23
there is a reasonable probability that, absent the errors, the factfinder would have had a
24
reasonable doubt respecting guilt.” Id. at 695.
25
If the state's case is weak, the potential prejudicial effect of counsel's performance
26
must be evaluated in light of that fact. See Johnson v. Baldwin, 114 F.3d 835, 838 (9th Cir.
27
1997). After all, if the state's case is weak there is a greater likelihood of a reasonable
28
29

1
2
3

probability that the result of the trial would have been different. See id. at 839-40.
a.

Failure to Investigate

A defense attorney has a general duty to make reasonable investigations or to make

4

a reasonable decision that makes particular investigations unnecessary. See Strickland,

5

466 U.S. at 691; Pinholster, 131 S. Ct. at 1407. Strickland directs that “‘a particular

6

decision not to investigate must be directly assessed for reasonableness in all the

7

circumstances, applying a heavy measure of deference to counsel’s judgments.’” Silva v.

8

Woodford, 279 F.3d 825, 836 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 491).

9

Counsel need not pursue an investigation that would be fruitless or might be harmful to the
defense. See Richter, 131 S. Ct. at 789-90. Assuming counsel should have found and

11
For the Northern District of California

United States District Court

10

presented additional evidence, a state court's rejection of a claim of ineffective assistance

12

based on counsel's failure to pursue further investigation is reasonable if the additional

13

evidence would not likely have caused the jury to reach a different verdict. See Samayoa

14

v. Ayers, 2011 WL 1226375 at *10-11 (9th Cir. Apr. 4, 2011) (affirming state court's

15

rejection of claim of ineffective assistance where no reasonable probability of different

16

outcome for penalty phase of capital trial given that additional mitigating evidence counsel

17

failed to present about petitioner's difficult childhood does not outweigh overwhelming

18

aggravating evidence).

19

A claim of negligence in conducting the pretrial investigation can form the basis for a

20

claim of ineffective assistance. See United States v. Tucker, 716 F.2d 576 (9th Cir. 1983).

21

Counsel must, at a minimum, conduct a reasonable investigation enabling her to make

22

informed decisions about how best to represent her client. Avila v. Galaza, 297 F.3d 911,

23

924 (9th Cir. 2002) (failure to conduct reasonable investigation, despite virtual certainty that

24

defendant did not commit the crime, constituted deficient performance); Sanders v. Ratelle,

25

21 F.3d 1446, 1457 (9th Cir. 1994) (failure to investigate leading to uninformed decision not

26

to call witness who had admitted to committing crime not a strategic decision).

27

The duty to investigate and prepare a defense does not require that every

28
30

1

conceivable witness be interviewed. Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir.

2

1995). A claim of failure to interview a witness cannot establish ineffective assistance

3

when the person's account is otherwise fairly known to defense counsel. Eggleston v.

4

United States, 798 F.2d 374, 376 (9th Cir. 1986). When the record shows that the lawyer

5

was well-informed and the defendant fails to state what additional information would be

6

gained by the discovery he now claims was necessary, an ineffective assistance claim fails.

7

Id. However, defense counsel’s failure to pursue corroborating evidence through an

8

adequate pretrial investigation can establish constitutionally deficient performance.

9

Hendricks, 70 F.3d at 1040.
To establish prejudice caused by the failure to call a witness, a petitioner must show

11
For the Northern District of California

United States District Court

10

that the witness was likely to have been available to testify, that the witness would have

12

given the proffered testimony, and that the witness’ testimony created a reasonable

13

probability that the jury would have reached a verdict more favorable to the petitioner.

14

Alcala v. Woodford, 334 F.3d 862, 872-73 (9th Cir. 2003).

15
16

b.

Trial Tactics

Tactical decisions of trial counsel deserve deference when: (1) counsel in fact bases

17

trial conduct on strategic considerations; (2) counsel makes an informed decision based

18

upon investigation; and (3) the decision appears reasonable under the circumstances. See

19

Sanders, 21 F.3d at 1456. Whether counsel's actions were indeed tactical is a question of

20

fact considered under 28 U.S.C. § 2254(d)(2); whether those actions were reasonable is a

21

question of law considered under 28 U.S.C. § 2254(d)(1). Edwards v. LaMarque, 475 F.3d

22

1121, 1126 (9th Cir. 2007).

23

The investigation itself must be reasonable for an attorney’s tactical decision based

24

on that investigation to be reasonable. Wiggins v. Smith, 539 U.S. 510, 523-24 (2003)

25

(tactical decision not to present life history as mitigating evidence in capital sentencing trial

26

unreasonable where counsel failed to follow up on evidence that defendant had a

27

miserable childhood). However, federal courts should not overlook the "wide latitude

28
31

counsel's conduct "[b]eyond the general requirement of reasonableness." Pinholster, 131

3

S. Ct. at 1406-07 ("No particular set of detailed rules for counsel's conduct can satisfactorily

4

take account of the variety of circumstances faced by defense counsel or the range of

5

legitimate decisions . . . .") (quoting Strickland, 466 U.S. at 688-89). A court must consider

6

not only the quantum of evidence known to counsel, but also whether the known evidence

7

would lead a reasonable attorney to investigate further. Wiggins, 539 U.S. at 526-27; see

8

also Pinholster, 131 S. Ct. at 1407 (counsel not deficient in failing to further investigate and

9

present mitigating evidence of petitioner's mental disorder and negative family history in

10

capital sentencing trial because it was "reasonable for attorneys to conclude that creating

11
For the Northern District of California

counsel must have in making tactical decisions;" therefore, there are no "strict rules" for

2

United States District Court

1

sympathy for the defendant's family is a better idea because the defendant himself is

12

simply unsympathetic").

13

Evidence that the challenged trial conduct resulted from inattention rather than from

14

strategic considerations may also be relevant to the inquiry. Wiggins, 539 U.S. at 524-25

15

(noting that counsel represented to the court and to the jury in opening statements that they

16

would present a mitigation case based on defendant’s difficult life; failure to present such

17

evidence, therefore, likely resulted from inattention rather than strategic decision). see also

18

Rompilla v. Beard, 545 U.S. 374, 380-92 (2005) (even when a capital defendant’s family

19

members and the defendant himself suggested that no mitigating evidence was available,

20

his lawyer was bound to make reasonable efforts to obtain and review material that counsel

21

knew the prosecution would probably rely on as evidence of aggravation at the trial’s

22

sentencing phase); Siripongs v. Calderon, 133 F.3d 732, 734 (9th Cir. 1998) (court

23

evaluates failure to investigate or produce evidence for "strategic reasonableness").

24

Evaluation of the two duties overlaps: counsel cannot satisfy the duty to select a defense

25

when counsel does not investigate the best defense, but counsel may fail to investigate a

26

particular defense and still present the best one. Mickey v. Ayers, 606 F.3d 1223, 1236-37

27

(9th Cir. 2010).

28
32

1

To determine prejudice in a case where counsel failed to make a reasonable

2

investigation to support a tactical decision, the Supreme Court considered whether a

3

reasonable attorney would have made a different tactical decision if he had conducted a

4

reasonable investigation, and whether there was a reasonable probability that the jury

5

would have reached a different verdict had the attorney pursued the alternative strategy.

6

Wiggins, 539 U.S. at 536-38. In making the latter determination, a reviewing court must

7

evaluate the totality of the evidence. Id.; see, e.g., Rompilla, 545 U.S. at 389-92 (where

8

state court never reached prejudice element of Strickland claim, Court examined element

9

de novo and concluded that counsel’s failure to examine defendant’s prior conviction file
was prejudicial to penalty phase of capital trial because examination of file would have

11
For the Northern District of California

United States District Court

10

uncovered a range of mitigation leads which, taken as a whole, might well have influenced

12

the jury’s appraisal of defendant’s culpability).

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

2.

Rodriguez is Entitled to Relief on his Ineffective Assistance of Counsel
Claim as it Pertains to Alberty, Jackson, and Ramsey

At the outset, the court makes two important observations. First, the court notes that
none of the state courts - in either round of state habeas review - articulated their rationale
for their denial of Rodriguez’s ineffective assistance of counsel claim, but instead simply
issued summary or postcard denials. Accordingly, this court is required to conduct an
independent review of the record and the relevant federal law to determine whether the
state court’s decision was “contrary to, or involved an unreasonable application of, clearly
established federal law.” See Delgado, 223 F.3d at 981-82.
Second, the court notes that there is no explanation from trial counsel herself in the
record before this court or before the state courts regarding the reasons, if any, underlying
her failure to investigate or introduce evidence at trial. In her May 24, 2003 declaration
submitted to the state courts in conjunction with Rodriguez’s petitions for habeas relief part of the record before this court - Rodriguez’s state appellate counsel, Sandra Gillies,
notes that she sent trial counsel a declaration to sign, but that trial counsel failed to return
the declaration. Accordingly, given the absence of any such declaration from trial counsel,

28
33

1

there is very little, if anything, in the record regarding her reasons and/or trial strategy.8
a.

2

Lyons and Caufield

3

The court concludes that Rodriguez has not demonstrated that trial counsel’s

4

performance was deficient when she chose to cease efforts to subpoena, and thus pursue

5

trial testimony from Lyons and Caufield, given that neither Lyons nor Caufield were

6

available to testify at trial. Foskett believed that Lyons was trying to evade service, and

7

Caufield was hospitalized. However, even if Weaver’s performance could be considered

8

deficient with respect to these two witnesses, the court nevertheless concludes that

9

Rodriguez is unable to demonstrate prejudice with respect to Lyons and Caufield.
Neither Caufield nor Lyons offered testimony as helpful or specific as the other

11
For the Northern District of California

United States District Court

10

witnesses at issue here. Lyons’ role or placement at the scene is difficult to comprehend,

12

and he is not mentioned by any other witness in this case. The only time the record

13

reflects his existence is in the interview report prepared by Foskett.

14

Likewise, Caufield’s testimony is difficult to understand. Her interview report is fairly

15

vague. She states that at least one member of the fighting groups was armed, but she was

16

unaware of the identities of any of the involved parties. Therefore, it is almost impossible to

17

ascertain from her interview report who she believed were the aggressors, who was armed,

18

or other facts significant to Rodriguez’s defense. Additionally, neither Lyons nor Caufield

19

communicated with Rodriguez prior to the shooting their belief that the Walker group was

20

armed.

21

In sum, the main purpose of having these two witnesses testify would have been to

22

corroborate the defense witnesses’ account of the robbery and the events leading up to the

23

shooting. Rodriguez, however, has not sufficiently shown that Lyons and Caufield would

24
8

25
26
27
28

It is this court’s experience that in the state record the court receives in conjunction with
the federal habeas proceedings, trial counsel routinely provide declarations reflecting their trial
strategy, in support of or even in opposition to, habeas petitions raising ineffective assistance
of counsel claims. There is often no means of assessing tactical decisions and the court finds
them very helpful in resolving these claims. Unfortunately, here, trial counsel chose not to
supply a declaration even when asked to do so, and the court is left to essentially guess as to
her trial strategy, if any.
34

1

have given the proffered testimony or that there is a reasonable probability that the jury

2

would have reached a verdict more favorable to him had they testified at trial. For these

3

reasons, his federal habeas claim fails to the extent it is based on the failure to present

4

these two witnesses.

5
6

b.

Jackson and Alberty

As noted, the record simply does not reflect any effort by the defense to contact and

inferred that the defense was aware of their existence because both defense witnesses,

9

Breshell and Rodriguez, referred to Alberty and Jackson in their testimony at trial. In fact,

10

both Alberty and Jackson attest in their declarations that they were never contacted by or

11
For the Northern District of California

interview Alberty and/or Jackson prior to trial. This is in spite of the fact that it may be

8

United States District Court

7

talked to the police or the defense about Rodriguez’s case prior to his trial.

12

The court finds it extremely problematic that defense counsel never even identified,

13

much less interviewed Alberty and Jackson, or secured their testimony for trial. Alberty and

14

Jackson were not tangential participants in the shooting; rather, they were intricately

15

involved in the entire altercation between the Walker and Melrose groups prior to the

16

shooting. Their interviews represent exactly the type of corroborative investigation that

17

reasonably competent counsel would conduct. See Tucker, 716 F.2d at 594.

18

Moreover, it appears that counsel’s failure to present their testimony resulted not

19

from a strategic decision but from inattention. See Avila, 297 F.3d at 920 (holding that

20

failure to present certain witnesses’ testimony is not a valid strategic decision when

21

attorney never investigated witnesses’ background or what testimony they could provide).

22

The lack of record evidence regarding a strategic choice by counsel not to present

23

evidence from Alberty and Jackson distinguishes this case from the United States Supreme

24

Court’s recent decision in Pinholster. See 131 S. Ct. at 1404 (noting that record supported

25

fact that death penalty petitioner’s counsel acted strategically in presenting “family

26

sympathy” mitigation defense); see also Richter, 131 S. Ct. at 789-90.

27

Accordingly, the court finds that counsel’s performance was deficient under the first

28
35

1

prong of the Strickland analysis when she failed to investigate Jackson and Alberty, thus

2

precluding introduction of their testimony at Rodriguez’s trial.

3

Additionally, the court concludes based on the totality of the evidence, that there is a

4

reasonable probability that the jury would have reached a different result had Jackson and

5

Alberty testified. Testimony from Alberty and Jackson would have supported defense

6

witness Breshell’s testimony about the general danger and aggressiveness posed by the

7

Walker group. This corroboration was particularly important since the prosecution tried to

8

discredit Breshell throughout the trial. If Rodriguez was going to successfully argue

9

justified use of deadly force as a defense, he needed more than Breshell’s and his own

11
For the Northern District of California

United States District Court

10

testimony.
Testimony from Jackson and Alberty would have undoubtedly added weight to

12

Breshell’s explanation of the threatening situation. Jackson and Alberty’s accounts were

13

fairly consistent with one another and with the other testimony presented. If Jackson and

14

Alberty had testified, it is unlikely that inconsistencies in their testimony would have acted to

15

discredit their perception of the incident because the inconsistencies between their

16

testimony were minor and their testimony was broadly consistent with the facts as

17

introduced at trial.

18

Additionally, in concluding that Rodriguez has demonstrated prejudice, the court

19

notes that the prosecution’s case was relatively weak regarding whether the use of deadly

20

force was justified. Neither prosecution witness Salazar nor Marshall actually observed the

21

crucial few minutes immediately preceding the shooting. Marshall initially looked out his

22

window when he heard loud conversation but turned away from the window and went about

23

his business when he did not see a fight. Marshall only went back to his window “five

24

minutes, give or take” later when he heard gunshots. Similarly, Salazar saw the Walker

25

group when they first arrived on Melrose Avenue because Salazar was in his vehicle in the

26

street. However, he then entered his house and told his wife to gather the kids from the

27

backyard because the unfamiliar teenagers made him nervous. After entering his house,

28
36

1

Salazar did not look outside his kitchen window to see what was happening in the street

2

until “about three to four minutes” later when he heard gunshots.

3

Although it is difficult for the court to make any definitive determination about

4

whether Alberty and Jackson would have been available to testify at trial had defense

5

counsel identified and contacted them, the court concludes that based on the absence of

6

an explanation in the record otherwise, including any evidence they were evading service,

7

any issue regarding their availability should be resolved in Rodriguez’s favor, given his

8

successful showing on the other two elements of prejudice.

9

For these reasons, the court concludes that Rodriguez is entitled to habeas relief
based on his counsel’s failure to investigate and introduce testimony from Alberty and

11
For the Northern District of California

United States District Court

10

Jackson.

12
13

c.

Ramsey

Rodriguez essentially claims that Weaver’s performance regarding Ramsey was

14

deficient in two respects: (1) she failed to attempt to subpoena Ramsey for trial in a timely

15

manner, and she should not have ceased defense efforts to locate Ramsey and secure his

16

trial testimony; and (2) in the absence of live testimony from Ramsey, counsel should have

17

attempted to introduce his preliminary hearing testimony at trial.

18
19

i.

Sub-Claim One: Failure To Timely Subpoena Ramsey

This sub-claim is a close call, but the court ultimately concludes that Rodriguez is

20

unable to demonstrate deficient performance or prejudice. It is unlikely that trial counsel’s

21

failure to successfully subpoena Ramsey constituted deficient performance in light of the

22

fact that Ramsey was evading service. The deficiency in defense counsel’s performance

23

with respect to Ramsey instead appears to have stemmed from her failure to utilize at trial

24

the evidence available to her – Ramsey’s preliminary hearing testimony.

25

Rodriguez is likewise unable to demonstrate prejudice because he cannot show that

26

Ramsey would have been available to testify. Ramsey was actively avoiding service; thus,

27

there was no guarantee that Foskett could have located Ramsey even if defense counsel

28
37

1

had provided him with additional time and/or had not instructed him to cease his efforts to

2

locate Ramsey.
ii.

3
4
5
6
7
8
9

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For the Northern District of California

United States District Court

10

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23
24
25
26
27

Sub-Claim Two: Failure to Introduce Ramsey’s Preliminary
Hearing Testimony

Unlike witnesses Alberty and Jackson discussed above, trial counsel appears to
have made a tactical decision not to introduce Ramsey’s preliminary hearing testimony.
She apparently read the testimony and decided that it was “too thin.” However, the court
finds the circumstances here distinguishable from the Supreme Court’s recent decisions in
Pinholster and Richter. Pinholster, 131 S. Ct. at 1404; Richter, 131 S. Ct. at 789-90.
Unlike counsel in those cases, trial counsel’s tactical decision here is not entitled to
deference because it was not reasonable under the circumstances. If counsel had
introduced any evidence supporting Rodriguez’s assertion that members of the Melrose
group had in fact been robbed by the Walker group, it would be a different story. However,
she did not introduce any such evidence, and Rodriguez’s own testimony to that effect was
not admitted for the truth. Thus, the prosecution was able to argue - and did argue during
closing arguments - that there was absolutely no evidence that a robbery had occurred,
thereby undermining Rodriguez’s defense that he justifiably used deadly force to prevent
Walker from robbing his friends.
Trial counsel’s failure to seek to introduce any corroborating evidence that Ramsey
had been robbed and that Ramsey had communicated this information to Rodriguez prior
to the shooting left a huge hole Rodriguez’s defense. Accordingly, Rodriguez has shown
deficient performance under the first prong of the Strickland analysis for this sub-claim
regarding Ramsey.
The court also concludes that counsel’s failure to introduce Ramsey’s preliminary
hearing testimony was prejudicial. This is in large part based again on the weakness of the
prosecution’s case. The record reveals that the prosecution presented no real motive for
the murder in this case. Given the absence of any motive, it was essential that the defense
present evidence regarding the robberies that were alleged to have been committed by the

28
38

1

Walker group, and which provided Rodriguez’s explanation for the shooting.
There is a reasonable probability that the introduction of Ramsey’s preliminary

2

constituted the most consequential witness because he was the only person involved in the

5

altercation between the Walker group and the Melrose group to have communicated

6

directly with Rodriguez prior to the shooting. Therefore, only Ramsey’s testimony (in

7

conjunction with Rodriguez’s) could establish what information was available to Rodriguez

8

when Rodriguez allegedly formed the belief that the use of deadly force was justified.

9

Ramsey’s preliminary hearing testimony would have provided the jury with evidence that

10

the Walker group robbed Ramsey, and that Ramsey advised Rodriguez that he had been

11
For the Northern District of California

hearing testimony would have impacted the jury’s verdict in this case. Ramsey arguably

4

United States District Court

3

robbed. Such testimony would thus have forced the prosecution to focus more on the

12

events preceding the shooting rather than the shooting itself.

13

Without Ramsey’s testimony, the defense had no corroborating evidence or

14

testimony that a robbery had occurred and that such information had been communicated

15

to Rodriguez prior to the shooting. This lack of corroborating evidence, coupled with the

16

relative weakness of the prosecution’s case, supports the court’s determination that the

17

deficient performance was prejudicial. See Johnson, 114 F.3d at 838.
For these reasons, the court concludes that Rodriguez is entitled to habeas relief

18
19

based on his counsel’s failure to introduce, or at a minimum, attempt to introduce Ramsey’s

20

preliminary hearing testimony.

21

////

22

////

23

////

24

////

25

////

26

////

27

////

28
39

CONCLUSION

1
2

For the above reasons, the court GRANTS habeas relief on Rodriguez’s ineffective

3

assistance of counsel claim. Accordingly, Rodriguez’s conviction is VACATED. The

4

respondent shall release petitioner from custody unless the state commences proceedings

5

to retry petitioner within one hundred and twenty (120) days of the date of entry of

6

judgment on this order. The clerk shall send an informational copy of this order to the

7

district attorney of Alameda County, in addition to the usual service on counsel of record.

8

IT IS SO ORDERED.

9

Dated: June 1, 2011
______________________________
PHYLLIS J. HAMILTON
United States District Judge

11
For the Northern District of California

United States District Court

10

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