Salvador Rodriguez v. Derral Adams , 545 F. App'x 620 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 18 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SALVADOR A. RODRIGUEZ, No. 12-15485
Petitioner - Appellant, D.C. No. 4:04-cv-02233-PJH
v.
MEMORANDUM*
DERRAL G. ADAMS, Warden and
WARDEN, C.S.A.T.F.,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted October 9, 2013
San Francisco, California
Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.
Salvador Rodriguez appeals the district court’s judgment denying his
petition for habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291
and 2253. We affirm in part and reverse in part.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Rodriguez’s first claim of ineffective assistance of trial counsel arises
out of his attorney’s alleged failure to investigate and present the testimony of
Vonree Alberty and Kenneth Jackson, two potential exculpatory witnesses who
were present during the incident that led to Rodriguez’s second degree murder
conviction. This claim was presented in a supplemental traverse filed after the
one-year deadline imposed by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). See 28 U.S.C. § 2244(d). Rodriguez’s original, timely-filed
petition for habeas corpus alleged ineffective assistance of trial counsel based on
his attorney’s failure to investigate three other witnesses who were also present
during the incident.
Under Rule 15(c) of the Federal Rules of Civil Procedure, an amendment to
a pleading relates back to the date of the original pleading “[s]o long as the original
and amended petitions state claims that are tied to a common core of operative
facts.” Mayle v. Felix, 545 U.S. 644, 664 (2005). The district court concluded that
Rodriguez’s newly-alleged claim of ineffective assistance of trial counsel satisfied
this standard. We agree. The individuals identified in Rodriguez’s original
petition and supplemental traverse were all potential percipient witnesses who were
present at the same underlying event. Consequently, the rationale for why
Rodriguez’s counsel allegedly should have investigated those individuals prior to
Page 2
trial and presented their testimony at trial share a common basis. The claim of
ineffective assistance of trial counsel presented in Rodriguez’s supplemental
traverse does not therefore “assert[] a new ground for relief supported by facts that
differ in both time and type from those the original pleading set forth.” Schneider
v. McDaniel, 674 F.3d 1144, 1150 (9th Cir. 2012) (quoting Mayle v. Felix, 545
U.S. 644, 650 (2005)) (internal quotation mark omitted). As such, this claim
relates back to the date of Rodriguez’s original petition and is not barred by
AEDPA’s one-year statute of limitations.
2. The district court stayed Rodriguez’s habeas petition to permit him to
exhaust this newly-asserted claim in state court. The California Supreme Court
denied the claim as untimely, citing In re Robbins, 959 P.2d 311 (Cal. 1998), and
In re Clark, 855 P.2d 729 (Cal. 1993). The district court consequently deemed
Rodriguez’s claim to be procedurally defaulted. Additionally, the district court
declined to excuse Rodriguez’s default, finding that although “Rodriguez can
likely demonstrate prejudice, he has not demonstrated sufficient cause.”
On appeal, Rodriguez argues that his procedural default may be excused
under Martinez v. Ryan, 132 S. Ct. 1309 (2012), a decision issued seven months
after the district court rendered its decision on this claim. Martinez announced an
equitable rule by which cause for excusing a procedurally-defaulted claim may be
Page 3
found, inter alia, where a petitioner could not have raised the claim on direct
review and was not appointed counsel on state collateral review.
[A] federal habeas court [may] find “cause,” thereby excusing a
defendant’s procedural default, where (1) the claim of “ineffective
assistance of trial counsel” was a “substantial” claim; (2) the “cause”
consisted of there being “no counsel” or only “ineffective” counsel
during the state collateral review proceeding; (3) the state collateral
review proceeding was the “initial” review proceeding in respect to
the “ineffective-assistance-of-trial-counsel claim”; and (4) state law
requires that an “ineffective assistance of trial counsel [claim] . . . be
raised in an initial-review collateral proceeding.”
Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013) (quoting Martinez, 132 S. Ct. at
1318–1319, 1320–1321) (first two alterations added, last two alterations in
original).
Martinez appears to offer Rodriguez a clear path for relief. First, Rodriguez
lacked counsel during his state collateral proceeding.1 Second, that proceeding
1
Although Rodriguez errs in focusing on the alleged ineffectiveness of his
appellate counsel for not proceeding to file a state habeas petition—rather than on
his lack of counsel on collateral review—we do not find this error to be fatal to his
claim. The State does not contest the fact that Rodriguez was only appointed
counsel during his federal collateral proceeding, and not his state collateral
proceeding. Therefore, we find this factor satisfied. Cf. Hall v. City of Los
Angeles, 697 F.3d 1059, 1071 (9th Cir. 2012) (“We may consider an issue sua
sponte if failure to do so would result in manifest injustice, or if the opposing party
will not suffer prejudice.”). Further, Rodriguez explicitly identified Martinez as a
basis for relief and offered arguments regarding Martinez’s other three
requirements. The State, moreover, specifically addressed Rodriguez’s eligibility
for Martinez relief under these three requirements in its answering brief.
Page 4
likely constituted an “initial-review proceeding.” See Martinez, 132 S. Ct. at 1315.
Third, California’s “state procedural framework, by reason of its design and
operation, makes it highly unlikely in a typical case that a defendant will have a
meaningful opportunity to raise a claim of ineffective assistance of trial counsel on
direct appeal.” Trevino, 133 S. Ct. at 1921; see also People v. Lopez, 175 P.3d 4,
12 (Cal. 2008) (“[E]xcept in those rare instances where there is no conceivable
tactical purpose for counsel’s actions, claims of ineffective assistance of counsel
should be raised on habeas corpus, not on direct appeal.”). We therefore remand to
the district court to consider two questions: whether Rodriguez can demonstrate
cause under Martinez, in light of this court’s recent en banc decision in Detrich v.
Ryan, No. 08-99001, 2013 WL 4712729 (9th Cir. Sept. 3, 2013) (en banc), and
whether Rodriguez can demonstrate prejudice under Coleman v. Thompson, 501
U.S. 722 (1991).
3. We reject Rodriguez’s contention that his trial counsel was
prejudicially ineffective for failing to introduce at trial a transcript of Roy
Ramsey’s preliminary hearing testimony. The district court correctly found that
the California Supreme Court did not unreasonably apply clearly established
federal law when it determined that the conduct of Rodriguez’s trial counsel fell
within “the wide latitude counsel must have in making tactical decisions.”
Page 5
Strickland v. Washington, 466 U.S. 668, 689 (1984). A review of Ramsey’s
preliminary hearing testimony reveals that it (1) contributed little to Rodriguez’s
theory of the case, (2) conflicted with portions of Rodriguez’s own trial testimony,
and (3) could have been significantly undermined through government
impeachment of Ramsey. The California Supreme Court thus reasonably rejected
this claim of ineffective assistance of trial counsel.
The judgment of the district court is AFFIRMED in part and REVERSED
in part and REMANDED. Costs on appeal are awarded to Appellant.
Page 6
FILED
Rodriguez v. Adams, No. 12-15485 NOV 18 2013
MOLLY C. DWYER, CLERK
N.R. SMITH, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I agree that (1) Rodriguez’s claim that his trial counsel was ineffective for
failing to investigate and present as witnesses Vonree Alberty and Kenneth
Jackson relates back to his original claim of ineffective assistance; (2) this claim is
procedurally defaulted, because the California Supreme Court denied it on
independent and adequate state grounds; and (3) the California Supreme Court did
not unreasonably apply clearly established federal law when it denied Rodriguez’s
claim that his trial counsel was ineffective for failing to present Roy Ramsey’s
preliminary hearing transcript to the jury.
However, the majority errs in determining that Rodriguez has potentially
shown cause for his procedural default based on his lack of counsel during his state
habeas proceedings. At no point throughout this appeal has Rodriguez argued that
filing his state habeas petition pro se shows cause to overcome the procedural
default. Although Rodriguez made that argument in the district court, he has
waived it on appeal by failing to “specifically and distinctly” make it in his
opening brief. United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). Ignoring
this most basic principle of judicial restraint, the majority remands based on an
argument Rodriguez did not make on appeal and to which the government has not
-1-
had a chance to respond.
In order to have a federal court hear his procedurally defaulted claim,
Rodriguez must show cause for the procedural default and prejudice. See Coleman
v. Thompson, 501 U.S. 722, 750 (1991). Rodriguez asserted in the district court
that his lack of counsel during his state habeas proceedings sufficed as cause for
the procedural default. However, Rodriguez abandoned that argument on appeal.
Instead, he argued in his opening brief that he can show cause because his state
appellate counsel was ineffective. He again made the same argument in his reply
brief and at oral argument: his state appellate counsel had an obligation to raise the
issue in state habeas proceedings, his state appellate counsel failed to do so, and
this ineffective assistance shows cause for the procedural default.
Rodriguez’s argument lacks merit. He points to no case or statute that
requires his state appellate counsel to raise a claim of ineffective assistance in a
state habeas petition. His appellate counsel could not have been ineffective for
failing to fulfill an obligation she never had. Having found Rodriguez’s sole
argument on appeal lacks merit, our inquiry into whether he can show cause for the
procedural default should end.
Instead, the majority searches for an argument Rodriguez could have made
that has merit. In that search, the majority decides that Rodriguez is potentially
-2-
entitled to relief under Martinez v. Ryan, 132 S. Ct. 1309 (2012), because he did
not have counsel in his state habeas proceedings. While that might be so,
Rodriguez did not make that argument on appeal. Rather than decide the case
based on the arguments presented to us by the parties, the majority here resurrects
an argument Rodriguez made in the district court but abandoned on appeal.
The majority justifies raising the argument sua sponte because “Rodriguez
explicitly identified Martinez as a basis for relief.” Mem. Dispo. at 4 n.1.
However, Rodriguez cites to Martinez only in the context of his argument that the
ineffectiveness of his appellate counsel is sufficient to show cause. Citing a case
that supports an argument Rodriguez could have made is much different than
actually making the argument. See United States v. Williamson, 439 F.3d 1125,
1138 (9th Cir. 2006) (“[I]ssues raised in a brief which are not supported by
argument are deemed abandoned.”). There is a reason why we require the parties
to submit briefs rather than just tables of authorities.
The majority further justifies raising the argument by citing Hall v. City of
Los Angeles, 697 F.3d 1059 (9th Cir. 2012), for the proposition that we can raise
issues sua sponte “if failure to do so would result in manifest injustice, or if the
opposing party will not suffer prejudice.” Id. at 1071. However, the majority fails
to explain how either of these exceptions to the waiver rule apply to the case at
-3-
hand.
Contrary to the majority’s assertion, the waived argument does not offer
Rodriguez a “clear path for relief,” Mem. Dispo. at 4; at most it provides
Rodriguez a clear path for remand. However, even if the majority were correct that
the waived argument could provide Rodriguez relief, that does not mean our failure
to raise it sua sponte would result in manifest injustice. If that were true, the
exception would swallow the rule: Why would we ever sua sponte raise an
argument that we thought was meritless? The manifest injustice exception requires
more. See, e.g., Hall, 697 F.3d at 1071 (applying the manifest injustice exception
in the “extraordinary circumstances” of an innocent man enduring a
“constitutionally questionable” interrogation, being convicted through the use of
“patently false inculpatory evidence,” and serving “19 years in state prison for a
crime he did not commit”); Ullah, 976 F.2d at 514 (applying the manifest injustice
exception where a conviction was based on a nonunanimous verdict, because such
an error “is plain error” and the same error resulted in the co-defendant’s
conviction being reversed).
Furthermore, the government has not had the opportunity to address the
majority’s argument, which is precisely the type of prejudice we intend the waiver
rule to prevent. See Hall, 697 F.3d at 1072 (finding appellees suffered no
-4-
prejudice, because “we provided the parties the opportunity to brief this issue”);
Alcaraz v. I.N.S., 384 F.3d 1150, 1161 (9th Cir. 2004) (“[T]he government is not
prejudiced by the Alcarazes’ failure to raise the issue in their opening brief because
after oral argument we called for and received supplemental briefs by both parties
on the repapering issue.”); United States v. Gamma Tech Indus., Inc., 265 F.3d
917, 930 (9th Cir. 2001) (finding appellees were not prejudiced because although
the “issue was not mentioned until oral argument, all parties have since discussed it
and briefed it”).
The government had no reason to address the majority’s argument because,
as the government noted in its brief, Rodriguez abandoned the argument on appeal.
Imagine the government’s surprise when it discovers the majority has remanded
based on the abandoned argument. Football players call that a “double reverse;”
we call it prejudice. See Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1176 (9th
Cir. 1996) (“We have discretion to consider improperly presented claims of error
where the appellee is not misled and the issue has been fully explored.” (emphasis
added)).
Sua sponte raising an argument that we believe has merit can be tempting.
However, Rodriguez’s counsel decided to abandon the argument on appeal that
Rodriguez proceeding pro se in his state collateral proceeding shows cause. In
-5-
light of the majority’s disposition, Rodriguez’s counsel made a mistake.
Nevertheless, the majority errs in raising that argument on Rodriguez’s behalf. See
Hartmann v. Prudential Ins. Co. of America, 9 F.3d 1207, 1214 (7th Cir. 1993)
(“[O]ur system . . . is not geared to having judges take over the function of lawyers,
even when the result would be to rescue clients from their lawyers’ mistakes.”). I
respectfully dissent.
-6-