NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 29 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
STEVEN DIAZ, No. 08-15808
Petitioner - Appellant, D.C. No. 2:05-CV-00376-MCE-
CMK
v.
KEN CLARK, MEMORANDUM*
Respondent - Appellee,
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted July 16, 2010
San Francisco, California
Before: HUG and M. SMITH, Circuit Judges, and TODD, Senior District Judge.**
Steven Diaz (“petitioner”), a California state prisoner, appeals the district
court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his convictions
for rape (Cal. Penal Code § 261), kidnapping with intent to commit rape (Cal.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
**
The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
Penal Code § 208), kidnapping (Cal. Penal Code § 207), and false imprisonment
(Cal. Penal Code § 236). We have jurisdiction under 28 U.S.C. § 2253. We
review de novo the denial of a habeas petition. Tanner v. McDaniel, 493 F.3d
1135, 1139 (9th Cir. 2007). Because the petition was filed after April 24, 1996, we
review it under the Antiterrorism and Effective Death Penalty Act (“AEDPA”).
Under AEDPA, we may grant the petition if the state court decision “was contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d); Byrd v. Lewis, 566 F.3d 855, 859
(9th Cir. 2009). We reverse and remand to the district court.
Petitioner argues that his trial counsel was ineffective for failing to test DNA
evidence taken from the victim after the assault. To establish ineffective assistance
of counsel under the Sixth Amendment, a petitioner must satisfy a two-part test.
Strickland v. Washington, 466 U.S. 668, 687 (1984). First, a petitioner must show
his counsel’s performance was deficient. Id. To establish deficient performance, a
petitioner must show that his attorney’s conduct “fell below an objective standard
of reasonableness” based on prevailing legal norms at that time. Id. at 688.
Second, a petitioner must show that his attorney’s deficient performance
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prejudiced his case. Strickland, 466 U.S. at 687. To show prejudice, a petitioner
must establish that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. A reasonable probability is one that is more likely than not to have
influenced the outcome, i.e., it is a probability sufficient to undermine confidence
in the outcome. Id. at 693-94.
In this case, the California Supreme Court’s denial of petitioner’s ineffective
assistance of counsel claim was an unreasonable application of clearly established
Supreme Court law. An attorney has a duty to carry out reasonable investigations
before he selects a trial strategy. Strickland, 466 U.S. at 691; Wiggins v. Smith,
539 U.S. 510, 521-22 (2003); Richter v. Hickman, 578 F.3d 944, 955 (9th Cir.
2009). An attorney must conduct an investigation for a case that is sufficient to
allow him to make an informed decision about whether certain tests in that case are
necessary. Richter, 578 F.3d at 955. “[D]ecisions that are made before a complete
investigation is conducted are reasonable only if the level of investigation was also
reasonable.” Duncan v. Ornoski, 528 F.3d 1222, 1234 (9th Cir. 2008). While an
attorney’s strategic choice made after a thorough investigation is almost
unchallengable, a strategic choice made after an incomplete investigation is
reasonable only “to the extent that reasonable professional judgments support the
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limitations on investigation.” Strickland, 466 U.S. at 690-91. A “particular
decision not to investigate must be directly assessed for reasonableness in all the
circumstances.” Id. at 691.
Here, trial counsel’s performance was deficient because his failure to test the
DNA evidence constitutes a failure to carry out reasonable investigations before
selecting a trial strategy. Petitioner’s counsel, Jon Lippsmeyer, failed to test the
DNA evidence gathered from the victim and chose to assert a defense of consent.
Lippsmeyer did not conduct a reasonable investigation, which would have included
testing the DNA evidence, before considering other possible defenses. Lippsmeyer
knew petitioner denied having sex with the victim because petitioner had stated
that the victim had a yellow mucus on her vagina and that he did not want to have
sex with her and contract a disease. Evidence showed the victim had chlamydia.
Also, Lippsmeyer knew that the victim had been found with several condoms in
her purse in an area known to host prostitutes. Given that petitioner adamantly
insisted that he did not have sex with the victim, and other evidence supported this
assertion, it was unreasonable for Lippsmeyer to fail to test the DNA evidence
before determining trial strategy. A thorough investigation of plausible options
would have undoubtedly required a DNA test, especially where the petitioner
insisted that he did not have sex with the victim. There was no reason not conduct
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the DNA test, the testing was widely used at the time, and Lippsmeyer had no
explanation for his failure to test the evidence. Thus, the failure to test the DNA
evidence prior to determining trial strategy constitutes deficient performance. See
id. at 687; Wiggins, 539 U.S. at 524-26.
Trial counsel’s deficient performance in failing to test the DNA evidence
also prejudiced petitioner’s case. Given the strength of evidence supporting
petitioner’s version of events, there is a reasonable probability that conducting the
DNA test would have produced a different result at trial. Petitioner stated that he
engaged in a financial agreement to have sex with the victim, but later refused
because he saw that she had a venereal disease. Evidence supported this assertion
because the victim was found with several condoms in her purse and engaged
contact with the petitioner in an area known for prostitution. The victim also had a
venereal disease, as petitioner had insisted. If a DNA test had been conducted, it
could have supported petitioner’s testimony that he did not have sex with the
victim and that the semen on the victim came from another source. Thus, the
likelihood that DNA testing would have changed the result is “sufficient to
undermine confidence in the outcome.” See Strickland, 466 U.S. at 694; Wiggins,
539 U.S. at 536.
5
The dissent contends that petitioner’s counsel would have been ethically
barred from presenting the consent defense if the DNA was in fact petitioner’s.
However, counsel could have still relied on a consent defense–that the sexual
contact was consensual–even if it were the petitioner’s DNA. The record
contained testimony that petitioner initially agreed to pay the alleged victim for
sex. Thus, the consent defense would have remained viable even if the DNA
belonged to the petitioner.
Based on the foregoing, we hold that the California Supreme Court’s denial
of petitioner’s habeas petition was an unreasonable application of Supreme Court
law. We therefore reverse and remand to the district court with instructions to
grant the writ of habeas corpus.
REVERSED and REMANDED.
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FILED
Diaz v. Clark, No. 08-15808 NOV 29 2010
MOLLY C. DWYER, CLERK
Todd, District Judge, Dissenting: U.S. COURT OF APPEALS
I respectfully dissent. The majority holds that trial counsel’s performance
was deficient because his failure to obtain a test of DNA evidence prejudiced
petitioner’s case since there is a reasonable probability that conducting a DNA test
would have produced a different result at trial. That conclusion is not supported by
the evidence for several reasons.
First, the absence of petitioner’s DNA in the vaginal swabs taken from the
alleged victim would have had no effect on the verdict. Petitioner denied that he
ever penetrated the alleged victim’s vagina during the incident. The alleged victim
testified that she did not remember whether petitioner ejaculated during the
incident. Therefore, the absence of petitioner’s DNA in the testing sample would
have added nothing to the evidence upon which the jury had to make its credibility
determination.
Second, a test which showed the presence of petitioner’s DNA in the vaginal
sample would have had a significant detrimental impact upon petitioner’s position
at trial. Petitioner relied upon a consent defense, contending that the alleged victim
was a prostitute and that he abandoned his sexual activity when he discovered that
the alleged victim had a venereal disease. Defendant denied that he penetrated the
victim and denied that he ejaculated during the incident. If petitioner’s DNA had
been found in the tested vaginal fluids, his defense lawyer would have been unable
to present or argue the facts upon which petitioner relied as his only defense.
While defense counsel would not have been required to disclose a positive DNA
test to the prosecutor, see Fed. R. Crim. P. 16(b)(1)(B), defense counsel would
have been ethically precluded from presenting facts at trial that he knew to be
untrue. See People v. Riel, 998 P.2d 969, 1013-14 (Cal. 2000) (counsel “may not
present evidence they know to be false or assist in perpetrating known frauds on
the court”).
Third, it would be speculation to conclude that there is a reasonable
probability that a DNA test would have produced a different result. The jury was
presented with two completely different versions of the facts of this
incident–forcible rape versus consensual sexual contact abandoned before
penetration. A DNA test which was negative for defendant’s DNA would have
added nothing to those diametrically opposed versions and would not have affected
the result. A DNA test which was positive for defendant’s DNA would have
contradicted his testimony that he did not penetrate and ejaculate into the victim.
The district court’s determination that trial counsel’s failure to obtain DNA
testing resulted in no prejudice to petitioner was not contrary to, or an
unreasonable application of, clearly established federal law, see Byrd v. Lewis, 566
F.3d 855, 859 (9th Cir. 2009). Therefore, I would affirm.