Rios v. Rocha

• Decision Date: 31 July 2002
• Docket Number: No. 01-15835.,01-15835.
• Parties: Victor Eugene RIOS, Petitioner-Appellant, v. Teresa ROCHA, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 796

299 F.3d 796

Victor Eugene RIOS, Petitioner-Appellant, v. Teresa ROCHA, Warden, Respondent-Appellee.

No. 01-15835.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2002.

Filed July 31, 2002.

COPYRIGHT MATERIAL OMITTED

Quin Denver, Federal Defender and Ann C. McClintock, Assistant Federal Defender, Sacramento, CA, for the petitioner-appellant.

Bill Lockyer, Attorney General for the State of California; Robert R. Anderson, Chief Assistant Attorney General; Jo Graves, Senior Assistant Attorney General; John G. Mclean, Supervising Deputy Attorney General; and Harry Joseph Colombo, Deputy Attorney General, Sacramento, CA, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, District Judge, Presiding. D.C. No. CV-94-00209-FCD.

Before REINHARDT, NOONAN, and FERNANDEZ, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge FERNANDEZ.

OPINION

REINHARDT, Circuit Judge.

In the early morning hours of November 22, 1986, James Hampton, a member of the "Bloods" street gang, was shot and killed in front of the A/C Pizza and Deli in Sacramento, California. There were somewhere between 50 and 200 patrons at the location that night, many of whom were drinking and partying outside the establishment at the time the shots were fired.¹ Among those present were members of both the "Crips" and "Bloods," rival street gangs. In March of 1987, Victor Rios and John Lewis were charged with Hampton's murder. At their joint state court trial, Lewis presented a misidentification defense² while Rios presented an unconsciousness defense.³ The jury acquitted Lewis, but found Rios guilty of second-degree murder with the personal use of a firearm in violation of California Penal Code §§ 187, 189, and 12022.5. After denying Rios's motion for a new trial, the trial judge sentenced him to fifteen years to life for the murder conviction and a two-year consecutive sentence for the use of a firearm.

Rios appealed his conviction, but his direct appeals were denied. He then filed a state habeas corpus petition in the California Superior Court alleging inter alia that his trial counsel was constitutionally ineffective because he failed to investigate the case. Of the dozens of potential eyewitnesses, Rios's counsel interviewed only one before determining not to offer any evidence that Rios did not shoot Hampton and to rely instead on the expert testimony that counsel thought might establish that Rios was not conscious of his actions at the time of the shooting.

The California Superior Court agreed that Rios's counsel failed to reasonably investigate the case and that, as a result, his performance had been deficient, but it concluded that Rios was not entitled to habeas relief because there was not a reasonable probability that the outcome of his trial would have been different had counsel provided effective legal services. Rios pursued his ineffective assistance claim by filing state habeas petitions in the California Court of Appeal and the California Supreme Court, but they were summarily denied. He then filed a federal habeas petition in the district court on February 9, 1994. That court, after ordering the deposition of an eyewitness and expanding the record to include some additional declarations and records, denied the petition on March 14, 2001. Rios appeals that decision.⁴

We agree with the California Superior Court that the performance of Rios's counsel was deficient. We do not, however, agree with the state court's conclusion that Rios was not prejudiced by his counsel's failure to investigate. Five additional eyewitnesses to the shooting provided declarations and/ or testimony during the state and federal habeas proceedings affirmatively stating that Rios did not shoot Hampton. Given the nature and the number of the witnesses willing to testify on Rios's behalf, and the highly exculpatory nature of their testimony, our confidence in the outcome of the trial has been undermined. Because there is a reasonable probability that the outcome would have been different had Rios's counsel investigated the case and presented the testimony of the available witnesses at trial, we reverse the district court's decision.

I. FACTUAL BACKGROUND

By the early morning of November 22, 1986, somewhere between 50 and 200 people had gathered at the site of the A/C Pizza and Deli at the end of Auburn Avenue in Sacramento, California, where they were drinking and engaging in other group social activities. Rios, Lewis, and three young women — Tonya Hayden, Dolores Parrish, and Yvette Taylor — went to the area to join the growing party. Rios drove his Cadillac, with Lewis in the front passenger seat and the three women in the back. As Rios attempted to park his car in front of the deli, Hampton approached him and told him to move. When Rios reached out the window on the driver's side to introduce himself and to shake hands, Hampton began punching him hard in the face. He struck Rios on the temple and on his nose, and Rios began to bleed profusely. Hampton also kicked the rear window of Rios's car on the driver's side in an attempt to break it. Although James Barren, a friend of Hampton's, attempted to pull Rios out of the car, Rios managed to drive away.

At trial, various witnesses testified that Rios was not the first person with whom Hampton had engaged in a confrontation that night. In fact, witnesses observed Hampton taunting members of the rival gang, waving a gun around, threatening some people, and physically attacking a number of others.⁵

After his encounter with Hampton, Rios drove first to his house and then to his mother's. At trial, one of the three women in the car, Tonya Hayden, stated that she saw Rios and Lewis enter his mother's house and return with guns. This contradicted Hayden's initial statement to the police, in which she stated that she did not see Rios and Lewis carrying guns that night. The other two women in the car testified, consistent with Hayden's initial statement, that they did not see Rios and Lewis return with guns. All three women did, however, state that Lewis and Rios said they were going to "get" Hampton. Approximately thirty minutes later, they returned to the site of the prior incident in Rios's car. Rios stopped about a block away from the deli and told the women to turn the car around and wait there. Rios and Lewis then got out and walked to the area where all the drinking was occurring. Soon afterwards, Hampton was shot five times. At trial, the pathologist testified that he was shot twice in the chest with a small caliber weapon and three times in the back with a larger, different caliber weapon.

Shortly after the shooting, Rios and Lewis got back in the car and Dolores Parrish, who had become the driver, drove away. Taylor testified that she saw a gun in the back seat, but Parrish and Hayden testified that they did not. After stopping briefly once again at Rios's mother's house and Rios's own house, the group drove together to Reno, Nevada and then on to Cleveland, Ohio. All five were arrested shortly after they arrived in Cleveland.

Both Lewis and Rios were charged with murder and their cases were consolidated for trial. Rios privately retained Ronald Castro as his counsel. Eventually, however, Rios was unable to pay Castro. Approximately one week before the trial started, the California Superior Court appointed Castro to represent him.

At trial, the State presented the testimony of five eyewitnesses. Three of them were the young women who had been in the car with Rios and Lewis: Yvette Taylor (16 years old), Tonya Hayden (19 years old), and Dolores Parrish (27 years old). Hayden, who initially told the police that she did not see either Rios or Lewis with a gun on the evening in question, testified that, as the three women drove past the club when turning the car around, she saw Lewis and Rios shoot Hampton with Lewis firing first. Hayden did admit, however, that she was "real high" that night, because she was under the influence of both alcohol and drugs. Specifically, she testified that she had consumed portions of two pints of brandy and had also had a 40 ounce bottle of beer before she met up with Rios and Lewis. She stated that afterwards, but before the shooting, she, the defendants, and the two other young women in Rios's car shared a pint of gin and a joint of marijuana laced with cocaine.

Parrish testified that she did not see Lewis shoot Hampton, but she did see Rios shoot at Hampton after Hampton was already on the ground. She testified that she heard Rios fire his gun three times and observed him with a silver gun around the time of the shooting. When Parrish first spoke to the police, however, she told them that she did not see the shooting. Both Hayden and Parrish testified that afterwards in the car, Lewis said that he had shot Hampton several times. Parrish admitted that she was drunk that night because she had been drinking champagne, wine coolers, brandy, beer, and gin. She also admitted that she had shared the marijuana joint laced with cocaine with Hayden and the others.

Taylor's preliminary hearing testimony was read to the jury.⁶ She stated that she saw both Lewis and Rios shoot Hampton; first Lewis, and then Rios. Taylor testified that she heard Rios fire three times. Taylor admitted to drinking three cups of champagne that night, but she denied that anyone in the car was using drugs.

The three young women testified to hearing a varying number of shots fired that night. Hayden claimed to have heard a total of five, although she told the police in her initial statement that she had heard nine and later told a detective that she had heard 22. Parrish said she heard nine, and Taylor reported hearing six.

The State also called fifteen-year-old Deborah Carter, a witness who was at the scene on the night of the shooting. Carter testified that she knew Rios...