Rodriguez v. Adams, 111813 FED9, 12-15485

Docket Nº:12-15485
Party Name:SALVADOR A. RODRIGUEZ, Petitioner-Appellant, v. DERRAL G. ADAMS, Warden and WARDEN, C.S.A.T.F., Respondents-Appellees.
Judge Panel:Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges. N.R. SMITH, Circuit Judge, concurring in part and dissenting in part:
Case Date:November 18, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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SALVADOR A. RODRIGUEZ, Petitioner-Appellant,

v.

DERRAL G. ADAMS, Warden and WARDEN, C.S.A.T.F., Respondents-Appellees.

No. 12-15485

United States Court of Appeals, Ninth Circuit

November 18, 2013

NOT FOR PUBLICATION

Argued and Submitted October 9, 2013 San Francisco, California.

Appeal from the United States District Court for the Northern District of California No. 4:04-cv-02233-PJH Phyllis J. Hamilton, District Judge, Presiding.

Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.

MEMORANDUM[*]

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.

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 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...

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