Howard v. Clark

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DEANDRE MAURICE HOWARD,  No. 08-55340
Petitioner-Appellant, D.C. No.
v.  2:07-cv-2680-VAP-
KEN CLARK, Warden, SH
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding

Argued and Submitted
April 5, 2010—Pasadena, California

Filed June 15, 2010

Before: Alex Kozinski, Chief Judge, Dorothy W. Nelson,
Circuit Judge, and Nancy Gertner, District Judge.*

Opinion by Judge Gertner

*The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.

8757
8760 HOWARD v. CLARK

.

COUNSEL

Richard D. Rome, Van Nuys, California, for the petitioner-
appellant.
 HOWARD v. CLARK 8761
Edmund G. Brown Jr., Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Pamela C. Hamanaka,
Senior Assistant Attorney General, Xiomara Costello, Super-
vising Deputy Attorney General, Viet H. Nguyen, Deputy
Attorney General, Los Angeles, California, for the
respondent-appellee.

OPINION

GERTNER, District Judge:

Deandre Howard was convicted in California state court of
murder and attempted murder. In this appeal of the district
court’s denial of his petition for a writ of habeas corpus, How-
ard claims that his trial counsel rendered ineffective assistance
by failing to interview or elicit trial testimony from Arthur
Ragland, the surviving victim of the crimes with which How-
ard was charged. He also contends that his attorney was inef-
fective in neglecting to call an expert witness on the
unreliability of eyewitness identifications.

We hold that the district court correctly denied Howard’s
claim based on his trial counsel’s failure to call an expert wit-
ness on eyewitness identifications, but erred in denying his
claim that his attorney was ineffective in failing to interview
or elicit trial testimony from Ragland. Since the record is not
sufficiently developed to determine whether Howard is enti-
tled to relief based on his attorney’s allegedly inadequate
investigation of Ragland, we remand the case to the district
court for further proceedings.

BACKGROUND

Around 8:00 p.m. on July 8, 2002, Mark Freeman and
Arthur Ragland were standing outside a liquor store. A man
exited the front passenger door of a white Nissan, walked
8762 HOWARD v. CLARK
toward Freeman and Ragland, and shot them several times,
killing Freeman and wounding Ragland. Although the police
recovered no guns, they found ten shell casings, five each of
two different calibers, near the location where the victims had
been shot.

At trial, the only issue was whether Howard was the
shooter. The prosecution’s case relied almost exclusively on
two eyewitnesses: Sergio Hernandez, an employee of the
liquor store who observed the shooting while on a break, and
Dina Fontaine, Freeman’s former girlfriend who was down
the street from the victims at the time of the shooting. Rag-
land, the surviving victim of the shooting, did not testify at
Howard’s trial.

Hernandez positively identified Howard as the shooter in a
pretrial photo array, and reaffirmed his identification at trial.
Fontaine’s identification of the shooter was much more equiv-
ocal. Detective Donald Walthers interviewed her twice on
August 29, 2002. During the first interview, Fontaine became
upset and began to cry when Walthers showed her a six-
photograph lineup card containing Howard’s photo. She said
that she could not identify anyone without her glasses, which
she did not have with her at the time.

After Fontaine had retrieve her glasses, Walthers inter-
viewed her a second time. At trial, Fontaine and Detective
Walthers gave differing accounts of what occurred during this
second interview. Detective Walthers testified that Fontaine
identified Howard as the shooter from the photo array. Fon-
taine, however, denied that she positively identified Howard
as the shooter; instead, she claimed that she merely told
Detective Walthers that Howard and the shooter shared simi-
lar facial characteristics.

During cross-examination, Fontaine unambiguously stated
that Howard was not the shooter. In response to questioning
from the prosecutor, Fontaine admitted that she was in prison
 HOWARD v. CLARK 8763
on unrelated charges and knew that individuals who cooperate
with the prosecution or police often face retaliation. Neverthe-
less, she insisted that she was not scared to testify.

Howard was the only defense witness. He denied being the
shooter and testified that although he could not remember
exactly where he was at the time of the shootings, he was
probably at home, at work, with his girlfriend, or with his
parole officer.

The trial judge instructed the jury with versions of Califor-
nia Jury Instructions—Criminal Nos. 2.91 and 2.92,1 which
1
Specifically, the judge instructed the jury:
The burden is on the People to prove beyond a reasonable doubt
that the defendant is the person who committed the crime[s] with
which he is charged. If, after considering the circumstances of the
identification and any other evidence in the case, you have a rea-
sonable doubt whether the defendant was the person who com-
mitted the crime[s], you must give the defendant the benefit of
the doubt and find him not guilty.
Eyewitness testimony has been received in this trial for the pur-
pose of identifying the defendant as the perpetrator of the crimes
charged. In determining the weight to be given the eyewitness
identification testimony, you should consider the believability of
the eyewitness as well as other factors which bear upon the accu-
racy of the witness’ identification, including but not limited to
any of the following:
The opportunity of the witness to observe the alleged crimi-
nal act and the perpetrator of the act;
The stress, if any, to which the witness was subjected at the
time of the observation;
The witness’ ability following the observation, to provide a
description of the perpetrator of the act;
The extent to which the defendant either fits or does not fit
the description of the perpetrator previously given by the
witness;
The cross-racial or ethnic nature of any identification;
8764 HOWARD v. CLARK
provide guidance for evaluating the testimony of eyewit-
nesses. On the morning of the second day of deliberations, the
jury announced it was deadlocked. The court asked the jurors
to continue with their deliberations, which they did. The jury
then returned its verdict, finding Howard guilty of the first-
degree murder of Freeman and the attempted first-degree
murder of Ragland.

Equipped with new counsel, Howard appealed his convic-
tion on the grounds that his trial attorney rendered ineffective
assistance by failing to call an expert witness on the unreli-
ability of eyewitness identifications. The California Court of
Appeal affirmed Howard’s conviction in an unpublished deci-
sion. Howard, 2004 WL 2664018, at *1. Howard did not file
a petition for review with the California Supreme Court.

While Howard’s direct appeal was still pending, Arthur
Ragland wrote a letter to Howard’s appellate counsel stating
that Howard was not the shooter and was thus innocent of the

A witness’ capacity to make an identification;
Evidence relating to the witness’ ability to identify other
alleged perpetrators of the criminal act;
Whether the witness was able to identify the alleged perpe-
trator in a photographic or a physical lineup;
The period of time between the alleged criminal act and the
witness’ identification;
Whether the witness had prior contacts with the alleged per-
petrator;
And the extent to which the witness is either certain or
uncertain of the identification;
And, finally, whether the witness’ identification is, in fact, a
product of his or her own recollection and any other evi-
dence relating to his ability to make the identification.
People v. Howard, No. B170820, 2004 WL 2664018, at *2-*3 (Cal. Ct.
App. Nov. 23, 2004).
 HOWARD v. CLARK 8765
crimes of which he had been convicted. Ragland subsequently
executed a sworn declaration stating:

[O]n August 27, 2002, Detective Walthers conducted
a tape recorded telephonic interview of myself—
Arthur Ragland—where I refused to meet with
detectives as at that time I had an outstanding parole
warrant. I made a summarized statement which is
included in Los Angeles Police [Department] follow
up investigation. . . .

Accordingly, I was evasive and non-cooperative but
the truth remains DeAndre Howard never attempted
to murder me neither did he murder, victim Mark
Anthony Freeman.

If I was made to testify in Court to these matters I
would under oath and affirmation.

On November 1, 2005, Howard filed a habeas petition in
California superior court. The petition raised the same claims
currently pending before us on appeal. The superior court
denied the petition in a brief, three-page order on December
28, 2005. Howard then filed habeas petitions with the Califor-
nia Court of Appeal and California Supreme Court, both of
which were summarily denied without citation of authority.2
2
As we have previously explained:
In California, the state supreme court, intermediate courts of
appeal and superior courts all have original habeas corpus juris-
diction. Although a superior court order denying habeas corpus
relief is nonappealable, a state prisoner may file a new habeas
corpus petition in the court of appeal. If the court of appeal
denies relief, the petitioner may seek review in the California
Supreme Court by way of a petition for review, or may instead
file an original habeas petition in the supreme court.
Redd v. McGrath, 343 F.3d 1077, 1079 n.2 (9th Cir. 2003) (citations omit-
ted).
8766 HOWARD v. CLARK
Howard filed his federal habeas petition under 28 U.S.C.
§ 2254 on April 23, 2007. The district court denied the peti-
tion on January 29, 2008. On motion of the defendant, we
issued a certificate of appealability under 28 U.S.C. § 2253(c)
on March 25, 2009.

DISCUSSION

I. Governing Legal Standards

We review a district court’s denial of a petition for a writ
of habeas corpus raising claims of ineffective assistance of
counsel de novo. Reynoso v. Giurbino, 462 F.3d 1099, 1108-
09 (9th Cir. 2006). Any factual findings made by the district
court are reviewed for clear error. Id.

Since Howard filed his habeas petition after April 24, 1996,
the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996, he cannot be granted habeas relief “with
respect to any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the claim
. . . resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1); see also Woodford v. Garceau, 538 U.S.
202, 204-07 (2003).

The phrase “clearly established Federal law” refers to “the
holdings, as opposed to the dicta,” of the Supreme Court’s
decisions “as of the time of the relevant state-court decision.”
Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court’s
decision is “contrary to” this body of law if it applies a rule
that contradicts the governing law articulated by the Supreme
Court or arrives at a result different than that reached by the
Supreme Court in a case with materially indistinguishable
facts. Id. at 405-06.

A decision involves an “unreasonable application” of
clearly established federal law if it “identifies the correct gov-
 HOWARD v. CLARK 8767
erning legal principle . . . but unreasonably applies that princi-
ple to the facts of the prisoner’s case.” Id. at 413. The
Supreme Court has emphasized that “an unreasonable appli-
cation of federal law is different from an incorrect application
of federal law.” Id. at 410. Accordingly, “a federal habeas
court may not issue the writ simply because that court con-
cludes in its independent judgment that the relevant state-
court decision applied clearly established federal law errone-
ously or incorrectly.” Id. at 411. Instead, the court must deter-
mine whether the state court’s application of Supreme Court
precedents was objectively unreasonable. Id. at 409. Although
the Supreme Court’s decisions are the focus of the
unreasonable-application inquiry, we may look to Ninth Cir-
cuit case law as “persuasive authority for purposes of deter-
mining whether a particular state court decision is an
‘unreasonable application’ of Supreme Court law.” Duhaime
v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000).

If after applying section 2254(d)’s “highly deferential”
standard, Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), we
conclude that the state court’s decision was contrary to—or
involved an unreasonable application of—clearly established
federal law, then we review the petitioner’s claim de novo.
See Frantz v. Hazey, 533 F.3d 724, 732-37 (9th Cir. 2008) (en
banc).

The “clearly established federal law” that applies in this
case is the framework articulated for analyzing claims of inef-
fective assistance of counsel in Strickland v. Washington, 466
U.S. 668 (1984). See Williams, 529 U.S. at 390 (applying Str-
ickland as the “clearly established federal law” that governed
petitioner’s ineffective-assistance claim). In Strickland, the
Supreme Court recognized that the right to counsel guaran-
teed by the Sixth Amendment includes “the right to the effec-
tive assistance of counsel.” 466 U.S. at 686 (quoting McMann
v. Richardson, 397 U.S. 759, 771 n.14 (1970)). However, the
Court defined this right in terms of the “crucial role” that
attorneys play in ensuring that our adversarial system pro-
8768 HOWARD v. CLARK
duces “just results.” Id. at 685. Thus, the Court held that an
attorney’s inadequate representation does not rise to the level
of a constitutional violation unless the deficiency so infected
the adversarial process as to raise doubts about the reliability
of the proceeding’s outcome. Id. at 687.

Strickland distilled these principles into a two-prong test.
To prevail on a claim of ineffective assistance of counsel, a
defendant must prove (1) that his counsel’s performance was
deficient, and (2) that he suffered prejudice as a result. Id. To
be deficient, an attorney’s conduct must fall below an “objec-
tive standard of reasonableness” established by “prevailing
professional norms.” Id. at 687-88. To demonstrate prejudice,

[t]he petitioner need not show that the deficient per-
formance more likely than not altered the outcome of
the case, but must demonstrate only a “reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”

Hart v. Gomez, 174 F.3d 1067, 1069 (9th Cir. 1999) (quoting
Strickland, 466 U.S. at 694).

II. Howard’s Attorney’s Failure To Interview, Investigate,
or Elicit Trial Testimony from Ragland

A.

Howard claims that his trial attorney rendered ineffective
assistance by failing to interview, investigate, or elicit trial
testimony from Arthur Ragland, the surviving victim of the
July 8, 2002 shooting with which he was charged. He alleges
that he urged his trial attorney to interview Ragland and call
him as a witness at trial, but the attorney steadfastly refused
to do so. If his attorney had fulfilled his request, Howard con-
tends, Ragland would have proclaimed his innocence at trial.
 HOWARD v. CLARK 8769
Ragland’s testimony would have been a powerful blow to the
prosecution’s case, which relied almost exclusively on the
eyewitness identifications of two individuals, one of whom
renounced her identification at trial, and nearly resulted in a
deadlocked jury even without Ragland’s testimony.

The California superior court judge who reviewed How-
ard’s habeas petition concluded that Howard’s attorney was
not deficient in failing to pursue Ragland’s testimony. Ruling
without the benefit of either Ragland’s declaration or an affi-
davit or testimony from Howard’s trial counsel,3 the superior
court reasoned:

Apropos Petitioner’s contentions concerning the
determination not to call Mr. Ragland as a trial wit-
ness, the pre-conviction report prepared by the Pro-
bation Department in this case notes that Mr.
Ragland was a documented member of the Rolling
40’s criminal street gang, was reluctant to identify
the shooter and had to be contacted through a law
enforcement telephone number “due to the serious-
ness of his gang-related crime.” It is fair to consider
that trial counsel was aware of this report.

Here again, the record fails to demonstrate that
there was no rational, tactical purpose in trial coun-
sel’s determination not to call a gentlem[a]n present-
ing serious credibility issues as a witness in this case.

Since the California Court of Appeal and Supreme Court
summarily denied Howard’s subsequent habeas petitions, we
3
Following his appellate attorney’s advice, Howard filed a “bare bones”
habeas petition with the superior court to toll the running of 28 U.S.C.
§ 2244(d)(1)(A)’s one-year statute of limitations. Although Howard’s
appellate attorney had indicated that he would be able to supplement his
petition, which did not include Ragland’s declaration and presented his
claims in a rather summary fashion, the superior court did not afford him
an opportunity to do so before issuing its decision.
8770 HOWARD v. CLARK
must consider the superior court’s reasoning in conducting the
deferential review required by 28 U.S.C. § 2254(d)(1). See
Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002) (“In deter-
mining whether a state court decision is contrary to federal
law, we look to the state’s last reasoned decision . . . as the
basis for its judgment.”).

[1] The superior court unreasonably applied the standard
set forth in Strickland. First, its exclusive focus on the attor-
ney’s decision not to call Ragland as a witness at trial was
unreasonable. In his superior court habeas petition, Howard
claimed that his trial counsel “was ineffective in not inter-
viewing or calling Arthur Ragland to testify.” Strickland rec-
ognized that an attorney’s duty to provide reasonably
effective assistance includes the “duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 466 U.S. at
691; see also ABA Standards for Criminal Justice: Prosecu-
tion Function and Defense Function 4-4.1(a) (3d ed. 1993)
(“Defense counsel should conduct a prompt investigation of
the circumstances of the case and explore all avenues leading
to facts relevant to the merits of the case . . . .”). Thus, the
superior court unreasonably applied Strickland by failing to
explicitly consider whether Howard’s attorney made a reason-
able professional judgment to limit his investigation of Rag-
land. See Strickland, 466 U.S. at 690-91.

[2] But even if the superior court’s decision is read as hav-
ing made an implicit judgment that Howard’s attorney reason-
ably decided to limit his investigation of Ragland based on the
credibility concerns raised by the Probation Department’s pre-
conviction report, that implicit conclusion was itself unrea-
sonable. In Wiggins v. Smith, 539 U.S. 510 (2003), the
Supreme Court held that counsel’s exclusive reliance on a
psychological evaluation, a presentence investigation report,
and social-services records was unreasonable when further
investigation would have uncovered copious evidence of the
defendant’s bleak life history—evidence which probably
 HOWARD v. CLARK 8771
would have made a difference in the sentencing phase of the
defendant’s capital murder trial. The Court emphasized that
an attorney’s decision to forgo a particular line of defense is
not necessarily reasonable simply because it is based on
“some information” obtained in a limited investigation. Id. at
527. Instead, the attorney’s decision “must be directly
assessed for reasonableness in all the circumstances.” Id. at
533 (quoting Strickland, 466 U.S. at 691). Thus, “[i]n assess-
ing the reasonableness of an attorney’s investigation . . . a
court must consider not only the quantum of evidence already
known to counsel, but also whether the known evidence
would lead a reasonable attorney to investigate further.” Id. at
527.

[3] Even without the preconviction report, one would nor-
mally expect the surviving victim to be a star witness for the
prosecution. A reasonable attorney would therefore have
attempted to interview Ragland to prepare for trial. See United
States v. Tucker, 716 F.2d 576, 583-84 (9th Cir. 1983) (hold-
ing that counsel was deficient in failing to interview key gov-
ernment witnesses before trial); Baumann v. United States,
692 F.2d 565, 580 (9th Cir. 1982). The pre-conviction report
provided even more reason to try to contact Ragland. The fact
that Ragland was reluctant to identify his shooter would have
suggested to a reasonable attorney that he might make state-
ments in an interview that would exculpate Howard or at least
raise doubts as to his guilt.

[4] Furthermore, Howard’s attorney knew that his client
wanted him to interview Ragland and call him as a witness at
trial. Howard’s attorney was obligated to take this request
seriously. As the Supreme Court has noted:

The reasonableness of counsel’s actions may be
determined or substantially influenced by the defen-
dant’s own statements or actions. Counsel’s actions
are usually based, quite properly, on informed strate-
gic choices made by the defendant and on informa-
8772 HOWARD v. CLARK
tion supplied by the defendant. In particular, what
investigation decisions are reasonable depends criti-
cally on such information.

Strickland, 466 U.S. at 691; see also Jones v. Wood, 114 F.3d
1002, 1011 (9th Cir. 1997). In light of Howard’s insistence
that he contact Ragland, Howard’s attorney could not reason-
ably have decided to forgo an independent investigation of
this crucial witness who might have provided strong support
for Howard’s claim of innocence. See Hart, 174 F.3d at 1070
(“A lawyer who fails adequately to investigate, and to intro-
duce into evidence, records that demonstrate his client’s fac-
tual innocence, or that raise sufficient doubt as to that
question to undermine confidence in the verdict, renders defi-
cient performance.”); Gomez v. Beto, 462 F.2d 596, 597 (5th
Cir. 1972) (“When a defense counsel fails to investigate his
client’s only possible defense, although requested to do so by
him; and fails to subpoena witnesses in support of the
defense, it can hardly be said that the defendant has had the
effective assistance of counsel.”).

[5] The superior court’s narrow focus on the “serious cred-
ibility issues” Ragland would have presented as a witness was
unreasonable. As we have previously noted, the fact that a
witness might not appear credible at trial is not a reasonable
basis for failing “to identify or attempt to interview” him.
Avila, 297 F.3d at 920; see also Riley v. Payne, 352 F.3d
1313, 1324 (9th Cir. 2003). Howard’s attorney had a duty, at
the very least, to apprise himself of Ragland’s account of the
shooting, even if he would later have decided based on the
information he obtained not to put Ragland on the stand. See
Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994) (quot-
ing United States v. Gray, 878 F.2d 702, 712 (3d Cir. 1989)).
To make an informed decision whether to call Ragland as a
witness at trial, Howard’s attorney was obligated to make an
independent assessment of Ragland’s account of the shooting
and credibility as a witness. See Lord v. Wood, 184 F.3d 1083,
1095 (9th Cir. 1999); Thomas v. Lockhart, 738 F.2d 304, 308
 HOWARD v. CLARK 8773
(8th Cir. 1984) (holding that counsel rendered ineffective
assistance by relying exclusively on the prosecution’s investi-
gative file even though his client provided him with informa-
tion casting doubt on the prosecution’s evidence).

We have ordered that habeas petitions be granted in cases
quite similar to Howard’s. Brown v. Myers, 137 F.3d 1154
(9th Cir. 1998), held that the petitioner was prejudiced by his
attorney’s ineffectiveness in failing to contact or elicit trial
testimony from alibi witnesses. And in Lord v. Wood, 184
F.3d 1083, 1095 (9th Cir. 1999), we concluded that the peti-
tioner’s attorneys were deficient for failing to personally
interview three witnesses who claimed to have seen a murder
victim alive after the time when the prosecution claimed the
petitioner killed her. Importantly, we determined that the
attorneys did not fully discharge their duty to investigate even
though they were equipped with reports from the police and
defense investigators that indicated that there were inconsis-
tencies in the witnesses’ accounts that might undermine their
credibility at trial. Id. at 1088-92. Despite these credibility
concerns, we concluded that the attorneys’ decision not to call
the witnesses at trial was not a reasonably informed profes-
sional judgment entitled to deference, largely because the
attorneys had not personally interviewed the witnesses and
thus did not have an opportunity to “look[ ] [them] in the eye
and hear[ ] [them] tell [their] story.” Id. at 1095.

[6] We conclude that any implicit conclusion by the supe-
rior court that Howard’s attorney rendered effective assistance
of counsel would be an unreasonable application of clearly
established federal law. The pre-conviction report was not, as
the superior court seems to have believed, a reasonable basis
on which to ground a decision to forgo any further investiga-
tion into a pivotal witness who Howard appears to have
believed would have proclaimed his innocence.

B.

Since the superior court’s decision involved an unreason-
able application of clearly established federal law, we must
8774 HOWARD v. CLARK
make an independent evaluation of Howard’s constitutional
claim. See Frantz, 533 F.3d at 732-37. Although the respon-
dent attempts to provide additional reasons for rejecting How-
ard’s claim that were not articulated by the superior court,
none of these reasons is sufficient to affirm the district court’s
denial of Howard’s petition.

First, the respondent argues that Howard’s attorney reason-
ably decided not to call Ragland as a witness because his tes-
timony merely would have been cumulative of Fontaine’s.
But Howard’s lawyer did not know that Fontaine would tes-
tify that Howard was not the shooter until she took the stand.
Fontaine’s unanticipated testimony at trial can hardly justify
the attorney’s failure to conduct an adequate investigation of
Ragland before trial. Furthermore, we highly doubt that a rea-
sonable attorney would have viewed Ragland’s testimony as
merely cumulative of Fontaine’s. It is one thing for an eyewit-
ness who has given seemingly inconsistent accounts of an
event to say that the defendant was not the culprit of a crime.
It is quite another for the victim himself to testify that the
defendant was not the offender. A reasonable attorney would
not have decided to forgo testimony from Ragland that How-
ard was not the shooter based simply on the force of Fon-
taine’s testimony.

The respondent also contends that Howard’s attorney’s fail-
ure to call Ragland as a witness was consistent with the attor-
ney’s strategic decision to largely refrain from presenting a
defense and instead focus on calling into question the prose-
cution’s ability to prove its case beyond a reasonable doubt.
The respondent notes that in a so-called “Marsden hearing”
on Howard’s motion to dismiss his trial attorney and have a
new lawyer appointed, see People v. Marsden, 2 Cal. 3d 118
(1970), Howard stated that his attorney was refusing to call
“several witnesses” who were “questioned by the detective
and said they couldn’t I.D. [him].” Howard now claims that
one of these witnesses was Ragland. Howard’s attorney indi-
cated that he was “somewhat” familiar with these witnesses
 HOWARD v. CLARK 8775
and would not call them to testify because he usually did not
elicit testimony from witnesses who merely could not posi-
tively identify the defendant as the person who committed the
crime. Thus, the respondent argues, Howard’s attorney had a
legitimate tactical reason for not calling Ragland to the stand:
Ragland would simply have testified that he could not identify
Howard as the shooter, which would have done little to bol-
ster the defense’s case. Since Ragland’s testimony would not
have significantly helped the defense, the respondent con-
tends, the attorney’s decision not to call Ragland as a witness
was reasonable.

This argument fails in light of both Howard’s allegation
that his attorney did not carry out an independent investiga-
tion of Ragland and Ragland’s declaration that, if “made to
testify . . . [he] would” affirm that Howard was not the
shooter. Perhaps if the evidentiary record in this case is fur-
ther developed, it will become clear that Howard’s attorney
actually conducted an adequate investigation of Ragland or
that Ragland would not have been willing to testify at the time
of Howard’s trial that Howard was not the shooter. But as the
record now stands, Howard has made a preliminary showing
that (1) Ragland would have declared his innocence if made
to testify at trial, and (2) his attorney never interviewed Rag-
land at all. Under the circumstances—again, a less than fully
developed record—the attorney’s decision not to call Ragland
as a witness could not have been a reasonably informed pro-
fessional judgment.4
4
The respondent also contends that Howard’s attorney may have made
a strategic decision not to elicit testimony from Ragland and instead to ask
the jurors in his opening and closing statements to draw adverse inferences
from the prosecution’s failure to call Ragland as a witness. To be sure, that
might have been an entirely appropriate strategic choice if the attorney had
interviewed Ragland and concluded that he would not be a credible wit-
ness. But again, Howard’s attorney could not reasonably make this tactical
decision without first conducting an adequate investigation of Ragland.
See Strickland, 466 U.S. at 690-91.
8776 HOWARD v. CLARK
[7] Finally, the respondent argues that Howard was not
prejudiced by his attorney’s failure to interview or elicit trial
testimony from Ragland because Ragland would not have
been a credible witness and the government’s evidence
against Howard was overwhelming. However, the record
belies the claim that the prosecution’s case was strong. The
government had no physical evidence linking Howard to the
crime. It relied almost exclusively on the eyewitness identifi-
cations of Fontaine and Hernandez. At trial, Fontaine denied
ever identifying Howard as the shooter and explicitly stated
on cross-examination that he was not the man she had seen on
the night of the shooting. Although Hernandez positively
identified Howard as the shooter, if Ragland had testified oth-
erwise, thereby buttressing Fontaine’s trial testimony, some
jurors might well have had a reasonable doubt as to Howard’s
guilt. Indeed, the jurors’ declaration on the second day of their
deliberations that they were deadlocked suggests that—even
without Ragland—this was a close case. Whatever the chal-
lenges to Ragland’s credibility, his testimony might well have
tipped the balance in Howard’s favor. At the very minimum,
if Ragland was ready and willing to testify as to Howard’s
innocence, and Howard was deprived of such testimony
because of his attorney’s shoddy investigation, our confidence
in the jury’s verdict would be significantly undermined. See
Strickland, 466 U.S. at 694.

[8] For these reasons, we hold that the district court erred
in denying Howard’s request for an evidentiary hearing.5 We
5
On remand, the respondent may argue that Howard is not entitled to
expand the evidentiary record because he failed to avail himself of the
opportunity to develop the factual basis of his claim in the state habeas
proceedings. See 28 U.S.C. § 2254(e)(2); Cooper-Smith v. Palmateer, 397
F.3d 1236, 1241 (9th Cir. 2005) (“[T]he conditions of § 2254(e)(2) gener-
ally apply to Petitioners seeking relief based on new evidence, even when
they do not seek an evidentiary hearing.”). We do not decide this issue
since the parties have not briefed it. However, we note that we have previ-
ously ruled that “[w]here . . . the state courts simply fail to conduct an evi-
dentiary hearing, [section 2254(e)(2)] does not preclude a federal
evidentiary hearing on otherwise exhausted habeas claims.” Jones, 114
F.3d at 1013.
 HOWARD v. CLARK 8777
thus remand the case for further proceedings by the district
court to test the merits of his allegations.

III. Howard’s Attorney’s Failure To Call an Eyewitness-
Identification Expert

[9] Although we reverse the district court’s denial of How-
ard’s claim based on his attorney’s failure to interview or
elicit trial testimony from Ragland, we affirm its denial of his
claim that his attorney rendered ineffective assistance by fail-
ing to call as a defense witness an expert on the unreliability
of eyewitness testimony. Without reaching the issue of
whether Howard’s attorney’s failure to call such an expert fell
below prevailing standards of professional competence, we
hold that Howard’s Sixth Amendment right to effective assis-
tance of counsel was not violated because he suffered no prej-
udice. We have repeatedly affirmed district court decisions to
exclude the testimony of eyewitness-identification experts
from federal criminal trials. In reaching these decisions, we
have made it clear that we “adhere to the position that skillful
cross examination of eyewitnesses, coupled with appeals to
the experience and common sense of jurors, will sufficiently
alert jurors to specific conditions that render a particular eye-
witness identification unreliable.” United States v. Chris-
tophe, 833 F.2d 1296, 1300 (9th Cir. 1987); see also United
States v. Labansat, 94 F.3d 527, 530 (9th Cir. 1996); United
States v. Langford, 802 F.2d 1176, 1179-80 (9th Cir. 1986);
United States v. Brewer, 783 F.2d 841, 842-43 (9th Cir.
1986); United States v. Amaral, 488 F.2d 1148, 1152-54 (9th
Cir. 1973). If federal defendants are not prejudiced by the
exclusion of testimony from eyewitness-identification experts,
Howard was not prejudiced by his trial attorney’s failure to
call such an expert, especially on this record.6 His attorney
6
To the extent that the California state courts relied on similar reason-
ing, their decision that Howard was not prejudiced by his counsel’s failure
to call an eyewitness-identification expert is entitled to deference under 28
U.S.C. § 2254(d)(1). See Howard, 2004 WL 2664018, at *6 (citing United
States v. Brewer, 783 F.2d 841, 842-43 (9th Cir. 1986), which we also cite
in our discussion above).
8778 HOWARD v. CLARK
extensively cross-examined Hernandez and Fontaine and,
even more significantly, the jurors were instructed on the
potential shortcomings of eyewitness testimony. Cf. Jones v.
Smith, 772 F.2d 668, 674 (11th Cir. 1985) (holding that state
prisoner was not entitled to habeas relief based on his coun-
sel’s failure to call an expert witness on the unreliability of
eyewitness testimony).

CONCLUSION

[10] For the foregoing reasons, we conclude that the dis-
trict court correctly denied Howard’s claim that his right to
effective assistance of counsel was violated by his trial attor-
ney’s failure to call an expert witness on the unreliability of
eyewitness testimony. However, we hold that the district court
erred in denying Howard’s request for an evidentiary hearing
on his attorney’s failure to interview or elicit trial testimony
from Ragland. Assuming that 28 U.S.C. § 2254(e)(2) presents
no barrier, see supra note 5, Howard should be afforded an
opportunity to offer additional evidence to support this claim.

Accordingly, we AFFIRM IN PART and REVERSE IN
PART the district court’s denial of a writ of habeas corpus
and REMAND for further proceedings consistent with this
opinion.