# Sherman

> District Court, E.D. California · August 18, 2026

URL: https://www.frixlaw.com/law-library/cases/11439303

## Case

- **Full name:** Ricardo Velasquez v. Stu Sherman
- **Court:** District Court, E.D. California
- **Decided:** August 18, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 RICARDO VELASQUEZ, Case No. 1:15-cv-01288-KES-CDB (HC)

12 Petitioner, FINDINGS AND RECOMMENDATION
TO GRANT PETITION FOR WRIT OF
13 v. HABEAS CORPUS1

14 STU SHERMAN, (Doc. 2)

15 Respondent. 21-Day Deadline

16
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On August 21, 2015, Petitioner Ricardo Velasquez (“Petitioner”), a state prisoner
18
proceeding by counsel, filed a petition for writ of habeas corpus (Doc. 2, “Petition”) and a
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contemporaneously filed motion to hold the petition in abeyance pending exhaustion of certain
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matters in state court (Doc. 3). The motion to stay was granted and, at Petitioner’s later request,
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lifted by the Court on August 2, 2016. See (Docs. 5, 13-14). Following the grant of two
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extensions of time, at the Court’s direction, Respondent filed an answer to the Petition on
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December 9, 2016. (Doc. 23, 24). On April 5, 2017, after the Court granted three extensions of
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time, Petitioner filed a reply (Doc. 31) and on April 7, 2017, a traverse (Doc. 33).
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On November 8, 2017, the presiding district judge adopted the formerly-referred
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magistrate judge’s findings and recommendations in full, denied the petition, and declined to
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1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Cal.
1 issue a certificate of appealability. (Docs. 34, 40). Petitioner appealed to the Ninth Circuit Court
2 of Appeals, which granted Petitioner’s request for a certificate of appealability with respect to two
3 issues implicated in trial counsel’s alleged ineffective assistance in the defense of Petitioner.
4 (Docs. 42, 47). Following the appointment of appellate counsel and briefing on Petitioner’s
5 appeal, on August 25, 2020, the Ninth Circuit reversed this Court’s denial of the petition and
6 remanded for an evidentiary hearing. (Doc. 53).
7 On remand, the Court granted Petitioner’s motions for discovery. (Docs. 74, 83).
8 Following the conduct of discovery and at the parties’ request, the Court convened for evidentiary
9 hearings on October 4, 2024 (Doc. 109), February 19, 2025 (Doc. 137), and April 30, 2025 (Doc.
10 144), during which seven witnesses were sworn and offered testimony. Thereafter, the parties
11 filed post-evidentiary briefings on the merits of the petition. (Doc. 156-58).
12 For the reasons set forth below, the undersigned recommends that the presiding district
13 judge grant the petition and order Petitioner’s release from custody unless Respondent files in this
14 Court a certification that the prosecuting authority will retry Petitioner.
15 I. PROCEDURAL AND FACTUAL BACKGROUND
16 On August 17, 2011, Petitioner was convicted in the Tulare County Superior Court of
17 attempted murder of a peace officer (Cal. Penal Code §§ 664, 187(a), count 1); assault on a peace
18 officer with a semiautomatic firearm (Cal. Penal Code § 245(d)(2), count 2); shooting from a
19 motor vehicle (Cal. Penal Code § 12034(c), count 8); and ten counts of second degree robbery
20 (Cal. Penal Code § 211, counts 3–7, 9–13). People v. Velasquez, No. F063254, 2013 WL
21 173190, at *1 (Cal. Ct. App. Jan. 16, 2013). Allegations were found true that the attempted
22 murder was committed willfully, deliberately, and with premeditation, that Petitioner personally
23 discharged a firearm, and that in committing the robbery counts, he personally used a firearm. Id.
24 The trial court sentenced Petitioner to a total prison term of 33 years, plus a consecutive term of
25 15 years to life. Id.
26 Petitioner appealed to the California Court of Appeal, Fifth Appellate District (“Fifth
27 DCA”), raising a claim of insufficiency of the evidence. (LD2 12). On January 16, 2013, the
1 Fifth DCA issued its opinion affirming the judgment. Velasquez, 2013 WL 173190, at *1. On
2 February 19, 2013, Petitioner filed a petition for review in the California Supreme Court. (LD
3 16). The California Supreme Court denied the petition without comment on March 27, 2013. (LD
4 17).
5 Petitioner next filed a habeas petition in the Tulare County Superior Court on June 20,
6 2014, raising six new claims for relief, including that trial counsel rendered ineffective assistance
7 in failing to investigate and call witnesses establishing that the actual shooter was not Petitioner,
8 but instead, Adan Fernandez. (LD 18). The superior court denied the petition on June 26, 2014.
9 (LD 19). On August 18, 2014, Petitioner filed a habeas petition in the Fifth DCA. (LD 20). The
10 petition was summarily denied without comment on October 6, 2014. (LD 21). On December 9,
11 2014, he filed a habeas petition in the California Supreme Court. (LD 22). The California
12 Supreme Court summarily denied the petition without comment on February 17, 2016. (LD 26).
13 A. State Trial Court Proceedings
14 The Court adopts the Statement of Facts in the Fifth DCA’s unpublished decision:3

15 Shortly after midnight on October 3, 2009, four Hispanic young
men entered a bar and grill in Tulare; at least two had guns and all
16 wore masks. Gunshots were fired into the ceiling and the men
threatened patrons, pointed guns at their heads and ordered them
17 around. Some patrons dropped to the floor while others ran for
cover. One patron ran out through a door and called the police.
18 Inside, the men robbed patrons at gunpoint of wallets, jewelry and
other possessions, and took about $1,200 from the cash register.
19 The robbers fled the bar and drove away in two vehicles. Two of
them got into a gray sports utility vehicle (SUV), while the other
20 two got into a smaller car.

21 Tulare Police Officer Justin Rich, who was alone in his marked
patrol unit, followed the SUV after he saw it about a half mile from
22 the bar. The SUV was quite a few car lengths ahead, so Rich
accelerated to approximately 60 miles per hour to try to catch up
23 and initiate a traffic stop. As Rich was closing in on the SUV, he
activated his overhead lights and siren, but the SUV failed to yield
24 and instead accelerated away from Rich, who continued the pursuit.

25 After going around a curve in the road, the SUV abruptly stopped in
the middle of the road. Rich slammed on his brakes to avoid hitting
26 the SUV and came to a stop about 20 feet directly behind it. The
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3 These facts are entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1); Crittenden
1 rear passenger-side door of the SUV started to crack open. At the
same time, Velasquez stood up inside the SUV and emerged from
2 the open sunroof. Velasquez, who was visible from the waist up,
was holding a black handgun, which he pointed directly at Rich.
3 Without hesitation, Velasquez began shooting in a downward
direction, firing a total of five or six shots. Rich heard two shots hit
4 the patrol car. As soon as he realized Velasquez was shooting at
him, he turned to the left and accelerated into a U-turn. As Rich did
5 so, he continued to look at Velasquez, who was still firing at him.
After completing the U-turn, Rich looked back to his left and saw
6 the SUV accelerate away. Rich radioed for assistance as he made
another U-turn and resumed the pursuit. Rich, however, smelled
7 smoke and thought the car was shaking, so he stopped while other
officers took over the pursuit.
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The officers lost sight of the SUV. An hour or so later, officers
9 found the abandoned SUV parked against a fence in a residential
area. Inside officers found property belonging to some of the
10 robbery victims, a shotgun, a spent .380–caliber casing, live .380–
caliber rounds and live Winchester shotgun shells. At the scene of
11 the shooting at Rich, officers found six expended .45–caliber shells
and a black ski mask on the road. The patrol car was hit twice in the
12 front, as shown by bullet holes in the following places: (1) in the
front bumper on the bottom part of the grill, just above the license
13 plate; and (2) in the middle of where the hood meets the front
portion of the vehicle and closes onto the frame. There was also a
14 bullet hole on the lower portion of the front passenger door. A bullet
was found in the engine compartment and bullet fragments were
15 found in the middle area of the lower front passenger door panel.

16 At around 4:30 that morning, officers found Velasquez hiding in a
garbage can with a wad of cash in his pocket and a cell phone in his
17 hand. A loaded .380–caliber automatic pistol was found inside the
garbage can. In an interview at the police station, Velasquez
18 admitted he possessed guns and that the robbery was his idea, but
denied shooting at Rich. Velasquez refused to name the shooter.
19 Velasquez also said he was driving the SUV when Rich was chasing
him, and admitted seeing the patrol car's lights. He did not stop
20 because he panicked and was scared.
21 Velasquez, 2013 WL 173190, at *1-2.
22 B. Federal Habeas Court Proceedings
23 1. The Ninth Circuit Court of Appeals’ Remand to This Court
24 Petitioner appealed this Court’s denial of the petition to the Ninth Circuit Court of
25 Appeals. (Docs. 40, 42). In an unpublished memorandum disposition filed August 25, 2020, the
26 panel reversed this Court’s denial of habeas relief and remanded for an evidentiary hearing.
27 (Doc. 53); Velasquez v. Ndoh, 824 Fed. Appx. 498 (9th Cir. 2020). Relevant here, the Ninth
1 Petitioner an evidentiary hearing resulted in a decision based upon an unreasonable determination
2 of the facts” 824 Fed. Appx. at 499 (citation omitted). On Petitioner’s ineffective assistance of
3 counsel claim, the Ninth Circuit noted that, “[i]f, as Petitioner alleges, trial counsel decided not to
4 investigate Fernandez’s role in the shooting solely because Fernandez was dead, that decision was
5 not objectively reasonable” under Strickland v. Washington. Id. at 500. The Ninth Circuit also
6 noted that, in support of habeas relief, Petitioner proffered three declarants who stated that
7 Fernandez bragged, on multiple occasions, that he was the shooter and that they would have
8 testified at trial if asked to do so. Id. Noting that Fernandez’s statements “likely would have
9 been admitted as statements against interest” under Cal. Evid. Code § 1230, the Ninth Circuit
10 concluded that, “[h]ad the jury heard evidence of Fernandez’s repeated boasts, there is at least a
11 reasonable probability that the jury would not have found that Petitioner was the shooter, and that
12 the result of the proceeding would have been different.” Id. Because Petitioner raised a
13 “colorable claim” of ineffective assistance of counsel, the Ninth Circuit remanded to this Court
14 for an evidentiary hearing. Id. at 501.4
15 2. This Court’s Evidentiary Hearings and Parties’ Post-Hearing Briefings
16 Over the course of three evidentiary hearings, the Court heard testimony from: Petitioner;
17 Petitioner’s trial counsel (Antonio Reyes); Petitioner’s mother (Lefuoio Landeros); Angel
18 Astorga, Alejandro Serrano, and Juan Barajas (three friends or family members of Adan
19 Fernandez who testified generally to statements Fernandez made to them about shooting at a
20 police officer); and Patrick Rossiter (an assistant to Petitioner’s habeas counsel). (Docs. 109,
21 137, 144). Their testimony will be cited below as relevant.
22 The parties also filed post-hearing briefs. (Docs. 156-58). All of the testimony elicited
23 during the evidentiary hearings and all of the parties’ post-hearing briefing concern a single claim
24 presented in the Petition: that trial counsel’s failure to investigate and introduce evidence that
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27 4 Although the Ninth Circuit also concluded that Petitioner presented a colorable claim of trial
counsel’s ineffective assistance on an additional theory (involving counsel’s failure to pursue fingerprint
evidence), Petitioner does not address that theory in his post-hearing briefing. Accordingly, that claim is
1 Adan Fernandez repeatedly admitted to shooting at a police officer violated Petitioner’s rights to
2 counsel under the Sixth Amendment to the U.S. Constitution.
3 II. STANDARD FOR FEDERAL HABEAS RELIEF
4 A federal court’s statutory authority to issue habeas corpus relief for persons in state
5 custody is set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
6 Penalty Act of 1996 (AEDPA). AEDPA requires a state prisoner seeking federal habeas relief to
7 first “exhaust[t] the remedies available in the courts of the State.”5 28 U.S.C. § 2254(b)(1)(A).
8 Where the state court adjudicates the claim on the merits, a petitioner is not entitled to habeas
9 relief unless the adjudication (1) “resulted in a decision that was contrary to, or involved an
10 unreasonable application of, clearly established Federal law, as determined by the Supreme Court
11 of the United States,” or (2) “resulted in a decision that was based on an unreasonable
12 determination of the facts in light of the evidence presented in the State court proceeding.” 28
13 U.S.C. § 2254(d).
14 “Deciding whether a state court’s decision ‘involved’ an unreasonable application of
15 federal law or was ‘based on’ an unreasonable determination of the facts requires the federal
16 habeas court to ‘train its attention on the particular reasons—both legal and factual—why state
17 courts rejected a state prisoner’s federal claims.” Wilson v. Sellers, 584 U.S. 122, 125 (2018).
18 When the state court’s decision “does not come accompanied with [its] reasons” for the decision,
19 a federal court “should ‘look through’ the unexplained decision to the last related state-court
20 decision that does provide a relevant rationale.” Id. However, when there is no reasoned decision
21 to “look through,” it may be presumed—in “the absence of any indication or state-law procedural
22 principles to the contrary”—that the state court adjudicated the claim on the merits and the
23 petitioner must show “there was no reasonable basis for the state court to deny relief.”
24 Harrington v. Richter, 562 U.S. 86, 98-99 (2011).
25 Under 2254(d)(1), a decision is “contrary to” clearly established federal law if the state
26 court either: (1) applied a rule that contradicts the governing law set forth by Supreme Court case
27 law; or (2) reached a different result from the Supreme Court when faced with materially
1 indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 16 (2003). A state court decision
2 involves an “unreasonable application” of the Supreme Court’s precedents if the state court
3 correctly identifies the governing legal principle but applies the facts of the petitioner’s case in an
4 objectively unreasonable manner, Brown v. Payton, 544 U.S. 133, 134 (2005), or “if the state
5 court either unreasonably extends a legal principle from [Supreme Court] precedent to a new
6 context where it should not apply or unreasonably refuses to extend that principle to a new
7 context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). “A state court’s
8 determination that a claim lacks merit precludes federal habeas relief so long as fair-minded
9 jurists could disagree on the correctness of the state court’s decision.” Harrington, 62 U.S. at
10 101. The petitioner must show that the state court decision “was so lacking in justification that
11 there was an error well understood and comprehended in existing law beyond any possibility for
12 fairminded disagreement.” Id. at 103.
13 Under § 2254(d)(2), “a state-court factual determination is not unreasonable merely
14 because the federal habeas court would have reached a different conclusion in the first instance.”
15 Wood v. Allen, 558 U.S. 290, 301 (2010). “State courts are accorded substantial deference. If
16 reasonable minds reviewing the record might disagree about the finding in question, on habeas
17 review that does not suffice to supersede the trial court’s determination.” Marks v. Davis, 106
18 F.4th 941, 949 (9th Cir. 2024) (citations and quotation marks omitted) (quoting Brumfield v.
19 Cain, 576 U.S. 305, 314 (2015)).
20 III. ANALYSIS
21 The Court previously found that Petitioner’s ineffective assistance of counsel claim was
22 raised on habeas review in the Tulare County Superior Court (Doc. 34 at 9), and Respondent did
23 not then and does not now in his post-hearing briefing dispute that Petitioner has exhausted the
24 claim.
25 In the last reasoned decision, the superior court denied Petitioner’s claims on the merits by
26 finding that Petitioner failed to show a prima facie case for relief, including as to Petitioner’s
27 ineffective assistance of counsel claim, stating that he “failed to establish the basic requirements
1 court denial of habeas petition upon finding that it failed to make a prima facie case “is a denial
2 on the merits of the claim”). The California Court of Appeal and California Supreme Court
3 denied the petitions without comment or citation to authority. Consequently, the Court looks
4 through the unexplained decisions to the superior court ruling to determine whether it is contrary
5 to, or based on an unreasonable application of, Supreme Court precedent or based on an
6 unreasonable determination of the facts. See Howard v. Clark, 608 F.3d 563, 568 (9th Cir. 2010).
7 No state court held a hearing and found facts with respect to Petitioner’s ineffective
8 assistance of counsel claim. Thus, whereas ordinarily the state court’s factual findings are
9 entitled to a “presumption of correctness” under AEDPA (see supra), such presumption does not
10 apply where, as here, the fact-finding process was fundamentally flawed. See Velasquez, 824
11 Fed. Appx. at 499 (citing Hurles v. Ryan, 752 F.3d 768, 790 (9th Cir. 2014)). Therefore, the
12 ordinary rule that state factual findings are presumed correct is disregarded and this Court
13 undertakes a de novo review with the benefit of evidence from the three evidentiary hearings
14 undertaken in compliance with the Ninth Circuit’s mandate. See Hurles, 752 F.3d at 778.
15 A. Ineffective Assistance of Counsel – Failure to Investigate
16 1. Background
17 According to evidence developed during the evidentiary hearings, following his arrest for
18 the robbery and shooting, Petitioner admitted to police that he was involved in a robbery but
19 denied being the shooter. (Doc. 125 at 11-2, Transcript of 10/4/2024 Hearing [“10/4/2024 Hrng.
20 Tr.”]). According to Petitioner, at some point prior to trial, he told his trial counsel, Antonio
21 Reyes, that Adan Fernandez was the actual shooter and had passed away. Id. at 81. Reyes
22 recalled that Petitioner identified someone whom he believed was Fernandez that may have been
23 involved in the crime, but not necessarily as the shooter. Id. at 12-13; 34. Petitioner’s mother,
24 Lefuoio Landeros, also testified she asked Reyes to investigate whether Fernandez was the
25 shooter because Fernandez’s friends had said that Fernandez told them that he shot at police. Id.
26 at 72. She specifically asked Reyes to speak to Fernandez’s parents to determine whether they
27 had information about Petitioner and Fernandez being together before the crime. Id. at 71.
1 part, Reyes recalled speaking with Landeros but did not recall whether she had implicated
2 Fernandez as the shooter. Id. at 13-14. He also testified that he spoke with Fernandez’s father
3 who told him Petitioner and Fernandez were together for several hours at the father’s home the
4 evening of the robbery and the shooting. Id. at 15-16.
5 Reyes conceded that, during his deposition in December 2022, he testified that he did not
6 investigate whether Fernandez was the shooter. Id. at 14. Thus, he did not attempt to identify
7 and investigate Fernandez’s friends, obtain a photograph of Fernandez, or look at Fernandez’s
8 obituary. Id. at 20-21.6
9 Reyes had been a practicing criminal defense lawyer in Tulare County for approximately
10 30 years at the time of Petitioner’s trial and had handled approximately 30 felony trials, including
11 five or six attempted murder cases and at least the same number of murder cases. Id. at 23-24.
12 He considered juries in Tulare county to be “pro-law enforcement.” Id. at 24. Reyes’s trial
13 strategy was informed by the fact the Petitioner had admitted his involvement in the robbery,
14 adamantly refused to testify at trial for fear of being required to identify the other participants to
15 the crime, and directed Reyes to not investigate fingerprint evidence to avoid implicating any co-
16 participants. Id. at 27, 32-33. Thus, at trial, Reyes conceded Petitioner’s participation in the
17 robberies and focused the jury on deciding whether the shooter harbored murderous intent. Reyes
18 argued that the fired bullets impacted the bottom of Officer Rich’s patrol car, instead of the
19 windshield, suggesting the shooter’s intent was merely to thwart the officer’s pursuit. Reyes
20 believed this trial strategy offered the benefit of avoiding a challenge to Officer Rich’s eyewitness
21 identification of Petitioner as the shooter, thereby maintaining credibility with the jury. Id. at 36-
22 38. Reyes largely followed this strategy in closing arguments to the jury. See (LD 6 at 52-53; LD
23 9 at 401, 403-07, 412).
24 In the state court habeas proceedings, Petitioner submitted declarations from purported
25 witnesses who were friends or relatives of Fernandez and who claimed that Fernandez had
26

27 6 In his post-hearing briefing, Petitioner characterizes his testimony during the evidentiary hearing
as establishing that Reyes told him Fernandez was not going to help in trial because he had passed away.
(Doc. 156 at 8) (citing 10/4/2024 Hrng. Tr. 84). However, the testimony at the evidentiary hearing does
1 admitted to them on multiple occasions that he had been involved in a robbery, was chased by
2 police, and shot at a police officer. (LD 22, Exs. J-L.); see Doc. 2-2 at Exs. J-L. Each stated that
3 counsel had not contacted them but they would have testified had they been called. Id. All three
4 of these declarants – Angel Astorga, Alejandro Serrano, and Juan Barajas – testified consistently
5 with these declarations at the evidentiary hearings held in this habeas proceeding. (10/4/2024
6 Hrng. Tr. at 48-52; Doc. 150, Transcript of 2/19/2025 Hearing, at 8-10; Doc. 151, Transcript of
7 4/30/2025 Hearing, at 13-21, 25).
8 2. Governing Legal Standard
9 A claim of ineffective assistance of counsel is evaluated under the two-prong test set out
10 in Strickland v. Washington, 466 U.S. 668 (1984). Under this test, “a petitioner must prove: (1)
11 that his counsel’s performance fell below an objective standard of reasonableness (the deficient
12 performance prong); and (2) that there is a reasonable probability of a more favorable outcome if
13 counsel performed effectively (the prejudice prong).” Rogers v. Dzurenda, 25 F.4th 1171, 1181
14 (9th Cir. 2022) (citing Strickland, 466 U.S. at 687-88, 694).
15 “Counsel is deficient where he makes errors so serious as to deny the defendant the
16 ‘counsel’ guaranteed by the Sixth Amendment—where he fails to offer ‘reasonably competent’
17 assistance as measured by ‘prevailing professional norms.’” Bemore v. Chappell, 788 F.3d 1151,
18 1162 (9th Cir. 2015) (quoting Strickland, 466 U.S. at 687-88). “[T]here is a ‘strong presumption
19 that counsel’s conduct falls within the wide range of reasonable professional assistance,’ and
20 ‘[j]udicial scrutiny of counsel’s performance must be highly deferential.’” Rios v. Rocha, 299
21 F.3d 796, 805 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 689). Among other things,
22 “defense counsel must, ‘at a minimum, conduct a reasonable investigation enabling him to make
23 informed decisions about how best to represent his client.’” Id. (quoting Sanders v. Ratelle, 21
24 F.3d 1446, 1456 (9th Cir. 1994)) (emphasis in original). “A defense attorney’s failure to consider
25 alternate defenses constitutes deficient performance when the attorney ‘neither conduct[s] a
26 reasonable investigation nor ma[kes] a showing of strategic reasons for failing to do so.’” Id.
27 (quoting Sanders, 21 F.3d at 1456) (alterations in original).
1 renders the result of the trial unreliable or the proceeding fundamentally unfair.” Rogers, 25
2 F.4th at 1182. In making this assessment, a reviewing court must “compare the evidence that
3 actually was presented to the jury with the evidence that might have been presented had counsel
4 acted differently.” Hernandez v. Chappell, 923 F.3d 544, 551 (9th Cir. 2019).
5 3. Deficient Performance
6 Although Respondent acknowledges that “counsel has a duty to make reasonable
7 investigations or to make a reasonable decision that makes particular investigation unnecessary”
8 (Doc. 157 at 15), he argues that trial counsel (here, Reyes) pursued an objectively reasonable
9 defense strategy. In support, Respondent points to the “challenging situation” trial counsel faced
10 given Petitioner’s admitted involvement in the robberies and in driving the getaway car, his
11 “adamant” refusal to testify, and resistance to trial counsel investigating fingerprint evidence to
12 avoid the possible discovery of evidence implicating other participants. He notes that trial
13 counsel anticipated the prosecution would pursue an aider and abettor theory of liability that,
14 Respondent contends, was conclusively established through Petitioner’s post-arrest admissions to
15 law enforcement officers regarding his participation in the robbery. Id. at 16. He argues
16 essentially that the strategy trial counsel selected – to focus almost exclusively on the state of
17 mind of the shooter – was a reasonable option taking all of these considerations into account and,
18 further, to avoid challenging a law enforcement officer’s eyewitness identification of Petitioner as
19 the shooter, which Respondent contends would have been particularly risky where the jury was
20 expected to be pro-law enforcement.
21 The problem with all of these arguments, however, is that trial counsel made strategic
22 decisions about the defense of the case without having undertaken the necessary investigation to
23 inform those decisions. It is true that “once counsel reasonably elects to pursue one defense
24 theory, ‘the need for further investigation [of the other theory] may be considerably diminished or
25 eliminated altogether.’” Turk v. White, 116 F.3d 1264, 1267 (9th Cir. 1997) (quoting Strickland,
26 466 U.S. at 691). However, trial counsel cannot preselect that strategy without first undertaking
27 the requisite investigation. See Bemore v. Chappell, 788 F.3d 1151, 1166-67 (9th Cir. 2015)
1 selecting a defense because, “[t]hat way, he could decide in an informed manner which defense
2 was preferable”). Thus, “an attorney’s decision to forgo a particular line of defense is not
3 necessarily reasonable simply because it is based on ‘some information’ obtained in a limited
4 investigation.” Howard v. Clark, 608 F.3d 563, 570 (9th Cir. 2010) (quoting Wiggins v. Smith,
5 539 U.S. 510, 527 (2003)) (emphasis in original). Instead, “[i]n assessing the reasonableness of
6 an attorney’s investigation ... a court must consider not only the quantum of evidence already
7 known to counsel, but also whether the known evidence would lead a reasonable attorney to
8 investigate further.” Id. (quoting Wiggins, 539 U.S. at 527) (alteration in original).
9 Here, Petitioner’s trial counsel testified that, consistent with his statements to law
10 enforcement, Petitioner told trial counsel that he was not the shooter (10/4/2024 Hrng. Tr. at 12,
11 25) and identified Fernandez as someone who was involved in the crime (see id. at 12-13, 34;
12 Doc. 157 at 11). Trial counsel conceded that he could not rule out that Petitioner identified
13 Fernandez as the shooter and that his trial file included information permitting an inference that
14 Fernandez was the shooter. (10/4/2024 Hrng. Tr. at 13, 30, 34). Trial counsel also was aware
15 that Petitioner and Fernandez had been together for several hours the evening of the robbery and
16 shooting and he could not rule out that Petitioner’s mother had expressed her belief to him that
17 Fernandez was the shooter. Id. at 13, 15-16. Under similar circumstances, the Ninth Circuit has
18 found trial counsels’ performance deficient under Strickland where they, too, failed to undertake
19 adequate investigation to inform trial strategy.
20 For instance, in Lord v. Wood, trial counsel strategically elected to not call three witnesses
21 at trial, all of whom repeatedly gave pretrial statements that they had seen the murder victim with
22 the defendant after the time of the victim’s murder, because counsel did not believe them “and
23 had been concerned that putting them on the stand would have harmed their own credibility with
24 the jury.” 184 F.3d 1083, 1089 (9th Cir. 1999). The Ninth Circuit found that nothing in the law
25 enforcement reports documenting the witnesses’ statements suggested that their stories “were
26 unworthy of belief.” Id. at 1089. The Ninth Circuit also found that counsel’s “cursory
27 investigation” of the known possible alibi witnesses, coupled with counsel’s decision to not
1 defense. Id. at 1093. The Court explained that it would “be inclined to defer to counsel’s
2 judgment if they had made the decision not to present the three witnesses after interviewing them
3 in person.” Id. at 1095.
4 Similarly, in Sanders, although trial counsel was aware of an alibi witness who confessed
5 to being the shooter, he strategically chose not to call him at trial. The Ninth Circuit concluded
6 that “[counsel] failed to conduct even the minimal investigation that would have enabled him to
7 come to an informed decision about what defense to offer and whether to call” the alibi witness to
8 testify at trial. Sanders, 21 F.3d at 1056. The Ninth Circuit observed that describing counsel’s
9 conduct “as ‘strategic’ strips that term of all substance” and concluded that counsel rendered
10 ineffective assistance in part because he made no effort “to ascertain whether [the alibi witness]
11 had confessed these [] facts [of having been the shooter] to other people whose testimony might
12 be used in the event [the alibi witness] ultimately decided to invoke the Fifth Amendment.” Id. at
13 1056-57.
14 In the face of the evidence cited above that Fernandez, no Petitioner, was the shooter,
15 Respondent argues that Petitioner’s testimony that he told trial counsel Fernandez was the shooter
16 is not credible and should be discounted/disregarded. In support of this argument, Respondent
17 notes that trial counsel’s file contained no notes that Petitioner ever identified Fernandez as the
18 shooter and, in any event, trial counsel testified that he would have “dealt with it” had Petitioner
19 ever identified Fernandez as the shooter. But trial counsel also testified that he had a practice of
20 not documenting his clients’ statements to him in his file. (10/4/2024 Hrng. Tr. at 39). He also
21 conceded that his trial file contained “inferences” that Fernandez was the shooter. Id. at 34.
22 Respondent advances other arguments about Petitioner’s lack of credibility (Doc. 157 at
23 19-20) that the undersigned has considered and rejects because they do not substantially
24 undermine that trial counsel was aware of sufficient facts to implicate a duty to make reasonable
25 investigation to inform his defense strategy. Even if the Court were to discount Petitioner’s
26 reported identification to trial counsel of Fernandez as the shooter, it is undisputed that trial
27 counsel at least was aware that Fernandez allegedly participated in the crime, acknowledges
1 and Petitioner were together for several hours during the evening of the crime. Under Lord and
2 Sanders, trial counsel’s failure to undertake reasonable investigation of Fernandez in light of
3 these facts fails under Strickland.
4 Respondent also argues that trial counsel’s performance – as relevant here, his decision to
5 forgo investigating and possibly introducing evidence of third-party liability in favor of an
6 alternative strategy – was reasonable because introduction of the exculpatory testimony would not
7 have shielded Petitioner from liability for the shooting as an aider and abettor. Thus, under
8 California law, a person may be guilty of attempted murder as an aider and abettor, even if the
9 person did not commit the act constituting the offense, so long as he acted with the intent or
10 purpose of committing or facilitating commission of the offense. People v. McCoy, 25 Cal. 4th
11 1111, 1118 (2001); see People v. Ervine, 47 Cal. 4th 745, 785 (2009) (noting that attempted
12 murder requires a showing of “specific intent to kill”). Respondent appears to contend that
13 Petitioner would have been exposed to liability for the attempted murder, even if evidence had
14 been introduced suggesting he was not the shooter, because “he had robbed the patrons at the bar
15 with his accomplices, fled with them, stopped the car so the shooter could fire at Officer Rich,
16 and drove the group away.” (Doc. 157 at 16) (emphasis added).
17 Respondent’s aiding and abetting argument is meritless. First, evidence that Petitioner
18 participated in the robbery, fled with co-conspirators, and drove them away after the shooting
19 does not persuasively suggest Petitioner shared in the shooter’s murderous intent in a manner that
20 would make him culpable as an aider and abettor. See People v. Cooper, 53 Cal. 3d 1158, 1164-
21 65 (1991) (holding that the aider and abettor’s requisite intent must be formed before or during
22 the commission of the offense). Second, there is no record evidence to support Respondent’s
23 contention that Petitioner (as the getaway car driver) stopped the car “so the shooter could fire” at
24 the pursuing officer as might implicate Petitioner sharing the shooter’s intent to murder.
25 Respondent separately argues that trial counsel’s performance could not have been
26 deficient because Petitioner never identified to him or his investigator witnesses who eventually
27 came forward and attested that Fernandez told them he shot police. In Respondent’s view, trial
1 obligation to reasonably perform his duty to investigate. (Doc. 157 at 22). To be sure, the key
2 Ninth Circuit decisions cited herein that address the duty to investigate are distinguishable in this
3 regard because, in those cases, trial counsel made strategic decisions to either not investigate or
4 not call at trial known witnesses. See Lord, 184 F.3d at 1089; Sanders, 21 F.3d at 1446-47; see
5 also Rios, 299 F.3d at 806; Avila v. Galarza, 297 F.3d 911, 919-920 (9th Cir. 2022). Here, as
6 Respondent correctly notes, there is no evidence to suggest that trial counsel was familiar with
7 either Astorga, Serrano, or Barajas, and the fact that they could exculpate Petitioner based on
8 Fernandez’s admissions to them. And as a general principle, the undersigned agrees with
9 Respondent that, to satisfy Strickland, trial counsel need not “scour the globe on the off chance
10 something” would turn up in Petitioner’s favor. (Doc. 157 at 22) (quoting Rompilla v. Beard, 545
11 U.S. 374, 383 (2005)). But even the case Respondent relies upon (Rompilla) makes the important
12 distinction that is dispositive of Respondent’s argument here: “reasonably diligent counsel may
13 draw a line when they have good reason to think further investigation would be a waste.” Id.
14 (emphasis added). Here, trial counsel could not have “good reason” to think further investigation
15 would be a waste because he conducted no investigation into Fernandez’s involvement in the
16 crime – including as the shooter – to inform any decision that further investigation was
17 unwarranted. Cf. Strickland, 466 U.S. at 690 (noting that “strategic choices made after thorough
18 investigation of law and facts relevant to plausible options are virtually unchallengeable.”)
19 (emphasis added).
20 For these reasons, the undersigned finds that trial counsel failed in his duty to conduct a
21 reasonable investigation such that his performance was deficient. This is consistent with the
22 formerly assigned magistrate judge’s finding – even without the benefit of the now-available
23 additional testimony confirming trial counsel’s knowledge of facts warranting further
24 investigation (see supra) – that “a reasonable attorney would have conducted at least some
25 investigation into whether someone else had admitted to the crime” given Petitioner’s reported
26 statement to his trial counsel that he was not the shooter. (Doc. 34 at 16-17).7 As noted above,
27
7 Although her findings and recommendations ultimately were rejected by the Ninth Circuit, there
is nothing in the Ninth Circuit’s opinion that suggests the panel would disagree with the assessment noted
1 Respondent’s contention that Petitioner never identified Fernandez’s friends who may have
2 information about Fernandez’s involvement in the shooting (Doc. 157 at 5) is not dispositive, and
3 in any event, the undersigned also agrees with the formerly assigned magistrate judge’s
4 assessment that even “[m]inimal investigation into Fernandez would surely have revealed these
5 individuals who were immediate friends and relatives of Fernandez.” (Doc. 34 at 17).
6 4. Prejudice
7 Respondent argues that, even if trial counsel’s performance was constitutionally deficient,
8 Petitioner has not satisfied Strickland’s separate requirement that he demonstrates such deficient
9 performance prejudiced him. Specifically, Respondent argues that the statements of Astorga,
10 Serrano, and Barajas, implicating Fernandez as the shooter, are not admissible in this habeas
11 proceeding and would not be admissible at trial, and even if they were admissible, reasonably
12 competent trial counsel would not have pursued a trial strategy premised on witnesses identifying
13 a deceased co-conspirator as the shooter. Respondent separately argues that it is not reasonably
14 probable a jury would have reached a verdict more favorable to Petitioner had trial counsel
15 pursued any such trial strategy.
16 Petitioner bears the burden of establishing that “there is a reasonable probability that
17 counsel’s failure to investigate, and to locate and produce witnesses, affected the outcome of the
18 proceeding.” Brown v. Myers, 137 F.3d 1154, 1157 (9th Cir. 1998). Petitioner “does not have to
19 show by a preponderance of the evidence that the result in his case would have been different but
20 for counsel’s errors”; rather, he must demonstrate “a probability sufficient to undermine
21 confidence in the outcome” of the trial. Id. (quoting Strickland, 466 U.S. at 694).
22 (1) The Exculpating Witnesses’ Statements are Admissible
23 Under Rule 804(b)(3), three requirements must be met before evidence is admissible
24 as a declaration against penal interest: (1) the declarant must be unavailable, (2) the
25 statement must tend to subject the declarant to criminal liability such that a reasonable
26 person in the declarant’s position would not have made the statement unless he believed it
27 to be true, and (3) there must be corroborating circumstances which indicate the
1 (overruled on other grounds, United States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir. 2008)).
2 The “against interest” requirement of Rule 804(b)(3) applies not only to confessions of
3 criminal responsibility, but also to remarks that “tend to subject” the declarant to criminal
4 liability. Id. at 559-60. “Nonetheless, each statement must (1) solidly inculpate the declarant and
5 (2) be one that a reasonable person in the declarant’s position would not have made unless it were
6 true.” United States v. Magana-Olvera, 917 F.2d 401, 407 (9th Cir. 1990).
7 Statements against penal interest are admissible under California law if they satisfy a test
8 similar to the Rule 804 test. “Under California law, out-of-court statements are admissible in
9 evidence if (1) the declarant is unavailable, and (2) his statements ‘so far subjected him to the risk
10 of civil or criminal liability ... that a reasonable man in his position would not have made the
11 statement unless he believed it to be true.’” Luna v. Cambra, 306 F.3d 954, 962 (9th Cir. 2002)
12 (quoting Cal. Evid. Code § 1230), amended by 311 F.3d 928 (9th Cir. 2002). “The declaration
13 must also be ‘sufficiently reliable to warrant admission despite its hearsay character.” Id. at 962-
14 63 (quoting People v. Duarte, 24 Cal.4th 603 (2000)). “To determine whether the declaration
15 passes the required threshold of trustworthiness, a trial court may take into account not just the
16 words but the circumstances under which they were uttered, the possible motivation of the
17 declarant, and the declarant’s relationship to the defendant.” Id. at 963 (quoting People v. Cudjo,
18 6 Cal.4th 585 (1994) (per curiam)).
19 Here, Respondent does not dispute that Fernandez is unavailable and only obliquely
20 challenges that his statements about being involved in a robbery, chased by police, and shooting
21 at a police officer solidly incriminate him given that two of the three witnesses to those
22 statements (Astorga and Serrano) testified that Fernandez appeared to be bragging when he made
23 the self-incriminating statements (Doc. 157 at 27). Cf. Cudjo, 6 Cal.4th at 607 (“It is ... not ...
24 reasonably disputable that a statement confessing to a killing ... subjects the declarant to a risk of
25 criminal liability and therefore on its face is against the alleged declarant’s penal interest”).
26 Chiefly, Respondent challenges that Fernandez’s statements to the three witnesses implicating
27 Fernandez as the shooter are not supported by corroborating circumstances of trustworthiness.
1 First, contrary to Respondent’s argument, the close relationship between the three
2 witnesses and Fernandez does not necessarily undermine the trustworthiness of Fernandez’s
3 statements. Respondent’s reliance on United States v. Gadson (9th Cir.) and United States v.
4 Bobo (8th Cir.) for such a proposition is inapt because, in those cases, the district court
5 permissibly found a lack of corroborating circumstances indicating trustworthiness of the hearsay
6 statement sought to be introduced under Rule 804 where the declarant and the defendant (the
7 party to benefit from the declarant’s statement) were familial relations (as brothers). Here,
8 Fernandez’s statements exculpating Petitioner do not present the same basis as in Gadson and
9 Bobo to question the statements’ trustworthiness as Fernandez and Petitioner were not family
10 members – though Petitioner testified that the two “were like family,” in fact, they had been
11 associated as friends for only two years prior to the robbery and shooting (10/4/2024 Hrng. Tr. at
12 89-90). Cf. United States v. Paguio, 114 F.3d 928, 933 (9th Cir. 1997) (noting that “[a] motive of
13 love might, however, induce a reasonable father to make a false self-inculpatory statement in
14 order to save his son,” but affirming admission of statement against penal interest due to other
15 corroborating evidence).
16 Even if an association in close friendship warrants scrutiny of the trustworthiness of one
17 friend’s statements against penal interest in favor of another friend, Gadson and Bobo are
18 distinguishable for the additional reason that the district courts in those cases relied on other
19 indicators of a lack of trustworthiness, including that the declarants had made contradictory
20 statements to others about the material facts conveyed in the hearsay statements at issue. See
21 Gadson, 763 F.3d at 1200; Bobo, 994 F.2d at 528. Here, in contrast, there is no evidence that
22 Fernandez made contradictory statements to others about his involvement in the shooting of
23 police.
24 Second, there are other corroborating circumstances supporting the reliability of
25 Fernandez’s statements that he shot at police after the robbery. To begin with, there is strong
26 evidence that Fernandez and Petitioner, in fact, were co-conspirators in the robbery and shooting.
27 Two witnesses informed trial counsel or his investigator that Fernandez and Petitioner were
1 hours before the robbery occurred. (10/4/2024 Hrng. Tr. at 16-20). Petitioner confessed to being
2 involved in the robberies and driving the getaway car but repeatedly denied being the shooter.
3 Witnesses to the robberies stated that two people fled in the getaway car. Three different
4 witnesses testified during the habeas evidentiary hearings that Fernandez admitted being the
5 shooter on multiple occasions, all occurring near in time (within approximately six weeks of) to
6 the shooting. See United States v. Johnson, 767 F.3d 815, 825 (9th Cir. 2014) (timing of co-
7 conspirator’s incriminating statements made in confidence to an associate shortly after the crime
8 “tend[ed] to establish [the] statements are sufficiently trustworthy” under Rule 804(b)(3)).
9 While Respondent is correct to note that Fernandez’s statements are not corroborated by
10 physical evidence, there likewise is no physical evidence contradicting Fernandez’s confessions
11 to the shooting, and, thus, the lack of corroborating physical evidence is not dispositive given the
12 other factors favoring a finding of trustworthiness summarized above. In short, the undersigned
13 finds that Fernandez’s statements to Astorga, Serrano, and Barajas are adequately corroborated
14 clearly indicating their trustworthiness. Thus, they are admissible as statements against penal
15 interest under both Rule 804 and California law.
16 (2) Reasonable Counsel Would Have Presented the Witnesses at Trial
17 and There is a Reasonable Probability That the Outcome at Trial
18 Would Have Been Different
19 Respondent argues that Petitioner cannot demonstrate that he was prejudiced by trial
20 counsel’s failure to investigate because, even if trial counsel had obtained Fernandez’s statements
21 admitting to being the shooter, reasonable counsel would not have pursued a defense strategy
22 anchored by testimony that a deceased co-conspirator confessed to the crime. In support,
23 Respondent notes that “the test for prejudice is whether the noninvestigated evidence was
24 powerful enough to establish a probability that a reasonable attorney would decide to present it.”
25 (Doc. 157 at 28) (quoting Mickey v. Ayers, 606 F.3d 1223, 1236-37 (9th Cir. 2010)). In
26 Respondent’s view, presenting a defense blaming a deceased co-conspirator would have been
27 “fraught with peril” because it would elicit suspicion from and alienate the jury. Id. at 28-29.
1 identify Fernandez while he was alive but been willing to present evidence of Fernandez’s
2 involvement at trial following his death. Respondent separately notes the trial risk inherent in
3 relying on the hearsay statements without any physical evidence corroborating the statements or
4 proof that Fernandez was even at the robbery or that his admission of shooting at police was a
5 reference to the shooting at issue in the case.
6 In Mickey, the petitioner raised an ineffective assistance of counsel claim based on his
7 counsel’s failure to present a mental health defense during the guilt phase of trial. In addition to
8 finding that petitioner failed to demonstrate trial counsel’s performance was deficient under
9 Strickland, the Ninth Circuit held that any failure by trial counsel to raise the mental health
10 defense did not prejudice the petitioner, largely because the evidence of his guilt “was
11 overwhelming” and, separately, because his claims to self-defense conflicted with the physical
12 evidence and his own statements. Mickey, 606 F.3d at 1239-40. Accord Rios, 299 F.3d at 808-09
13 (holding that prejudice based on a failure to investigate witnesses “must be considered in light of
14 the strength of the government’s case”) (citation and internal quotations omitted).
15 This case is not like Mickey and Respondent’s contention that a reasonable attorney would
16 not have presented the exculpatory testimony of Astorga, Serrano, and Barajas, is unpersuasive.
17 Where, as here, the prosecution case was based largely on testimony from a single eyewitness, the
18 Ninth Circuit has had “no trouble concluding that the failure to call [an exculpatory witness]”
19 undermines confidence in the outcome of the trial and results in prejudice. Allen v. LaMarque, 50
20 Fed. Appx. 346, 347 (9th Cir. 2002) (citing Rios, 299 F.3d at 809-813 & Avila, 297 F.3d at 923-
21 24). Thus, in Rios, the Ninth Circuit, in concluding that trial counsel’s failure to investigate was
22 prejudicial where five eyewitnesses attested during habeas proceedings that the petitioner there
23 was not the shooter, relied on “the nature and the number of the witnesses willing to testify on
24 [the petitioner’s] behalf, and the highly exculpatory nature of their testimony.” Rios, 299 F.3d at
25 800. The Ninth Circuit concluded that “[a] reasonable defense attorney with ample exculpatory
26 testimony from eyewitnesses would almost certainly have presented a misidentification defense
27 and not an unconsciousness defense or a combination of the two.” Id. at 811 n.22. Similarly, in
1 investigate and identify four witnesses who could have testified that petitioner was not the
2 shooter. Avila, 297 F.3d at 924 (relying in part on Lord, 184 F.3d at 1096).
3 And that principle is particularly apt here, where the identification of the shooter given by
4 the single eyewitness – albeit, a police officer – was subject to reasonable challenge. First,
5 Officer Rich testified at trial that, immediately after the getaway vehicle stopped abruptly during
6 the chase, a suspect emerged from the sunroof with a handgun and, within “a couple of seconds,”
7 fired five or six shots toward Officer Rich, at least two of which he heard impact his vehicle. (LD
8 8, Transcript of 6/9/2011 Trial [“Trial. Tr.”], at 277-78). Officer Rich testified that he was afraid,
9 upset, and shaking, prompting him to immediately turn to the left and accelerate into a U-turn as
10 the getaway car accelerated away. Id. at 278-79, 308. Thus, Officer Rich’s testimony about his
11 identification of Petitioner was vulnerable to challenge given that the shooting occurred at night,
12 began and ended relatively quickly, and the eyewitness (Officer Rich) was the alleged target of
13 the shooting and under the stress of the shooting during the brief opportunity he had to observe
14 the shooter. See Manson v. Brathwaite, 432 U.S. 98, 114 (1977) (noting that factors informing
15 the reliability of eyewitness identification testimony “include the opportunity of the witness to
16 view the criminal at the time of the crime [and] the witness’ degree of attention”).
17 Second, Officer Rich’s identification of Petitioner was vulnerable given the circumstances
18 leading up to his eventual selection of Petitioner from a photo lineup. Specifically, after Officer
19 Rich departed the scene of the shooting and returned to the stationhouse, he heard over the radio
20 that a suspect had been detained and/or arrested. Trial Tr. at 305. Officer Rich went outside, saw
21 the suspect (Petitioner) handcuffed from approximately 20 to 25 yards away, and watched the
22 suspect (Petitioner) enter the stationhouse. Id. at 306. Officer Rich conceded that it was not until
23 after he first saw Petitioner handcuffed that he identified Petitioner from a photo lineup. Id. at
24 306-07, 309-10. Even if the form of Officer Rich’s selection of Petitioner from a photo lineup
25 was not rendered unnecessarily suggestive by Officer Rich’s earlier observation of Petitioner in
26 handcuffs so as to make the identification inadmissible, the identification was vulnerable to
27 challenge because it came only after Officer Rich already had seen Petitioner detained as a
1 Petitioner’s refusal to identify the shooter to police and his insistence that trial counsel not
2 pursue fingerprint evidence almost certainly undermined his ability to defend against the charges.
3 But these inherent weaknesses in Petitioner’s defense case do not transform the prosecution’s
4 case into one that fairly can be characterized as “overwhelming” when it was supported largely by
5 a single eyewitness identification of Petitioner as the shooter.
6 In support of the argument that no reasonable attorney would have presented the
7 testimony of the exculpatory witnesses, Respondent separately contends that introduction of that
8 evidence would not have absolved Petitioner of liability for the attempted murder under an
9 aiding-and-abetting theory. This is unconvincing for the same reasons the undersigned has found
10 above that the mere possibility a jury would convict Petitioner as an aider and abettor does not
11 render trial counsel’s decision to forgo investigating third-party liability evidence objectively
12 reasonable, where there is no compelling basis to conclude that the evidence established beyond a
13 reasonable doubt that Petitioner shared in the shooter’s murderous intent prior to or during the
14 shooting.
15 In sum, having found that Petitioner’s trial counsel performed deficiently and his deficient
16 performance prejudiced Petitioner, the undersigned concludes that Petitioner was deprived of his
17 Sixth Amendment right to effective assistance of counsel and is entitled to habeas relief.
18 IV. RECOMMENDATION
19 For the reasons set forth above, it is RECOMMENDED that the presiding district judge:
20 1. GRANT the Petition for Writ of Habeas Corpus (Doc. 1) as to Ground IX (id. at 8-9);
21 2. ORDER Respondent to release Petitioner within ten (10) days after the judgment in
22 the instant case is filed, subject to appropriate release conditions, unless the State
23 elects to retry Petitioner (see Lujan v. Garcia, 734 F.3d 917, 933 (9th Cir. 2013) (“a
24 court may issue a conditional writ that requires the state to release a petitioner unless it
25 takes some other remedial action, such as retrial of the petitioner.”) (citing Herrera v.
26 Collins, 506 U.S. 390, 403 (1993)); and
27 3. ORDER Respondent to report to this Court, within ten (10) days after the judgment in
] These findings and recommendations are submitted to the district judge assigned to this
2 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the
3 | United States District Court, Eastern District of California. Within 21 days of service of this
4 | recommendation, any party may file written objections to these findings and recommendations
5 | with the Court and serve a copy on all parties. Such a document should be captioned “Objections
6 | to Magistrate Judge’s Findings and Recommendations.” The Court will not consider exhibits
7 || attached to the Objections. To the extent a party wishes to refer to any exhibit(s), the party
8 | should reference the exhibit in the record by its CM/ECF document and page number, when
9 | possible, or otherwise reference the exhibit with specificity. The district judge will review the
10 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C).
11 A party’s failure to file objections within the specified time may waive the right to appeal
12 | the district judge’s order. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing
13 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
14 | ITIS SO ORDERED.
| Dated: _ August 18, 2026 | Wr ba
16 UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11439303. Public record. Not legal advice.