Pedro Vega v. Charles Ryan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PEDRO IMPERIAL VEGA, No. 12-15631
Petitioner-Appellant,
D.C. No.
v. 4:09-cv-00473-
CKJ
CHARLES L. RYAN; CARSON
MCWILLIAMS, ORDER AND
Respondents-Appellees. OPINION

Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted
September 12, 2013—San Francisco, California

Filed May 19, 2014

Before: Mary M. Schroeder and Jay S. Bybee, Circuit
Judges, and Ralph R. Beistline, Chief District Judge.*

Per Curiam Opinion

*
The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
2 VEGA V. RYAN

SUMMARY**

Habeas Corpus

The panel withdrew an opinion filed November 13, 2013,
and filed a new opinion reversing the district court’s denial of
a 28 U.S.C. § 2254 habeas corpus petition challenging the
petitioner’s conviction of sexually abusing his stepdaughter.

The panel held that the state court’s application of
Strickland v. Washington was objectively unreasonable
because trial counsel was ineffective when he failed to review
the petitioner’s client file and failed to interview, and then
call as a witness, the priest to whom the victim had recanted
her allegations of her stepfather’s sexual abuse. The panel
held that because counsel has a duty to investigate even if his
or her client does not divulge relevant information,
reasonable jurists could not disagree that trial counsel’s
performance here was deficient.

Regarding prejudice, the panel held that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
The panel concluded that the state court’s finding that the
priest’s testimony would have been cumulative and would
have had no effect on the verdict is an unreasonable
determination of the facts in light of the evidence presented
in the state court proceedings.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 VEGA V. RYAN 3

COUNSEL

Patricia A. Taylor (argued), Law Office of Patricia A. Taylor,
Tucson, Arizona, for Petitioner-Appellant.

Thomas C. Horne, Attorney General, Kent Cattani, Division
Chief Counsel, Joseph T. Maziarz, Section Chief Counsel,
David A. Sullivan and Nicholas Klingerman (argued),
Assistant Attorneys General, Tucson, Arizona, for
Respondents-Appellees.

ORDER

The Opinion filed November 13, 2013, and appearing at
735 F.3d 1093, is withdrawn. It may not be cited as
precedent by or to this court or any district court of the Ninth
Circuit.

OPINION

PER CURIAM:

Petitioner Pedro Imperial Vega was convicted of sexually
abusing his stepdaughter. In this appeal of the district court’s
denial of his petition for a writ of habeas corpus, Vega argues
that his trial counsel was constitutionally ineffective when he
failed to review Vega’s client file and, as a result, failed to
call as a witness a Catholic priest to whom the victim had
recanted her allegations of her stepfather’s sexual abuse.
4 VEGA V. RYAN

We hold that reasonable jurists could not disagree that
counsel’s failing deprived Vega of his constitutional right to
effective counsel. Accordingly, the state court’s decision was
an unreasonable application of Strickland v. Washington,
466 U.S. 668 (1984). The district court erred by denying
Vega’s petition and we reverse.

I. BACKGROUND

Pedro Vega was convicted of contributing to the
delinquency of a minor, molestation of a child, and three
counts of sexual abuse of a child under fifteen, based on
incidents that occurred between 1995 and 1999. The victim
was Vega’s stepdaughter, B. As detailed by the Arizona
Superior Court:

In 1996, the victim (B.) originally raised
molest allegations, such which formed the
basis for Counts 1–3. Those allegations were
originally charged in the federal system, then
dismissed after Petitioner’s attorney (Denise
Shepard) in that case learned that the victim
had recanted such allegations, both to her
mother, and a priest, Father Daniel P.
McLaughlin. Those charges were later
reinstated in state court (CR-53329, in which
Petitioner was represented by Ralph
Ellinwood), but dismissed after Mr.
Ellinwood learned of the recantations. Counts
4–8 arose from allegations made by the victim
in 2001.1

1
All mistakes in original.
 VEGA V. RYAN 5

State charges were brought for a third time following a new
set of allegations by B, and the grand jury indicted Vega on
three counts based on the first set of allegations (counts 1–3)
and five counts based on the second set of allegations (counts
4–8). Yet a third lawyer, David Darby, represented Vega at
trial. After two mistrials, a jury found Vega guilty of five of
the eight counts.2 He was sentenced to twenty-eight years in
prison.

Both Vega and B testified at his trial, and the trial largely
turned on their testimony and the testimony of other family
members. During the trial, B testified that she recanted the
first set of allegations to her mother, but no evidence was
introduced that she had also recanted to Father McLaughlin
(“Father Dan”).

After Vega’s conviction, his counsel filed a motion for a
new trial or to vacate judgment, on the grounds that he had
just learned that the victim had recanted her allegations to
Father Dan. The trial court held an evidentiary hearing where
it heard testimony from several witnesses. First, Father Dan
testified—for the first time in the trial court—that B’s
mother, Molly Vega, brought B to his office, that he spoke
with B alone, that there was a “crisis in the family,” and that
B told him “he [Vega] didn’t do it.” He stated that because
it was not a “confessional matter,” he was “at liberty to tell
[the court] what the nature of the conversation was.” Second,
Vega’s first two attorneys, Denice Shepherd and Ralph
Ellinwood testified. Shepherd represented Vega when he was
charged with federal offenses that were later dismissed. She

2
The jury convicted Vega on count one, a lesser-included offense on
count three, and counts five, six, and eight. The jury could not reach a
verdict on the other counts.
6 VEGA V. RYAN

recalled that she first learned of B’s recantation to Father Dan
from B’s mother, Molly. In her written notes from that
conversation, she wrote down Father Dan’s contact
information and underneath it wrote “[B] told him Dad didn’t
do it.” She later spoke with Father Dan and he confirmed that
B had recanted. Attorney Ellinwood was a public defender
who represented Vega against the first set of state charges
that were also dismissed. Ellinwood kept notes from two
conversations he had regarding Father Dan. His notes, which
were in Vega’s case file and are in the record before this
court, reflect that he met with Vega, who told him that “[B]
recanted to [Father Dan].” He later met with Molly, and his
notes reflect “Father Dan – told him Daddy never did
anything to her.” Third, Judge Howard Fell, who was the
county attorney who prosecuted the second case, testified that
he had no recollection of the case, but authenticated his
hand-written notes (which he surmised were notes of a phone
conversation with Ellinwood), which read in part: “There is
no reasonable probability of success [in obtaining a
conviction.] . . . There are recantations from the beginning
that the child still [maintains].” He confirmed that the
charges against Vega were dismissed.

Vega’s counsel in the third case, Darby, testified and
advised the court that he learned of the victim’s recantation
to Father Dan from B’s aunt about a week to two weeks after
the verdict. He also admitted that it was possible that Vega
had mentioned the matter to him, but that he had not seen
Ellinwood’s hand-written notes about B’s recantation to
Father Dan in his client file. He later told the court that he
“[did not] remember reviewing any records of Mr.
Ellinwood.” Counsel acknowledged that if Vega knew that
B recanted to Father Dan and did not tell him, Vega “d[id] so
at his own peril,” but urged the court to vacate the conviction
 VEGA V. RYAN 7

on due process and Brady3 grounds. Darby also
acknowledged that if the court refused to grant a new trial, he
would have to argue that he provided ineffective assistance to
Vega. Following the hearing, the trial court denied the
motion for a new trial or to vacate because Vega and his two
prior counsel were aware of B’s recantation to Father Dan,
and thus Father Dan’s statements were not “newly
discovered” evidence under Ariz. R. Crim. P. 24.2(a)(2).

On direct appeal to the Arizona Court of Appeals, Vega
argued that the trial court had erred by denying his motion for
judgment of acquittal or a new trial. The Arizona Court of
Appeals denied his appeal on the merits, agreeing with the
superior court that B’s recantation to the priest was not
“newly discovered evidence.” The court of appeals also
agreed with the trial court that “[a]t a minimum . . . Vega did
not exercise due diligence” because “B.’s mother, Vega’s
sister and presumably Vega himself all knew and told others
about B.’s statements to the priest.” Finally, the court of
appeals concluded that the evidence would not have been
material because “the priest’s proffered testimony about B.’s
statements would merely have been cumulative to B.’s own
testimony that she had recanted her allegations to her mother
and a counselor.”4 The court concluded that there was not a
“reasonable probability” that the priest’s testimony would
have changed the outcome of the case. The Arizona Supreme
Court summarily denied review.

3
Brady v. Maryland, 73 U.S. 83 (1963).
4
The court of appeals agreed with the trial court that there was no
evidence the state knew of B’s recantation to Father Dan, and thus there
was no Brady violation.
8 VEGA V. RYAN

Vega then sought state post-conviction relief on the
grounds of ineffective assistance of counsel. The Arizona
Superior Court held a two-day evidentiary hearing in 2008,
and issued a detailed minute order. Reciting the standard for
ineffective assistance of counsel under Strickland, the court
refused to find

ineffective assistance in that [counsel] failed
to investigate the victim’s recantation to
“Father Dan.” This Court, at trial, determined
that Petitioner himself was aware of the
recantation. . . . The Court declines to find
post-conviction relief appropriate on this
ground, given that a defendant is responsible
for assisting counsel with his defense. It is
illogical and unreasonable to hold [counsel]
responsible for Petitioner’s failure to divulge
such information to him. Clearly, counsel’s
performance did not fall below the standard,
and Petitioner cannot have been prejudiced, as
he was aware of the recantation and himself,
failed to reveal it to counsel.

The court concluded:

The requirements of Strickland are clear:
Petitioner must demonstrate both that
counsel’s efforts fell below the standard
prevailing in the community, and that these
failings prejudiced him. The Court finds that
Petitioner has failed [to] demonstrate that
counsel’s efforts fell below the prevailing
professional norms. The Court further finds
that, even assuming arguendo that counsel’s
 VEGA V. RYAN 9

efforts fell below standards, Petitioner has
failed to prove prejudice as a result of those
actions. The evidence against Petitioner
included, but by no means was limited to: B.’s
testimony; the fact that Petitioner failed to
deny the molests to both B.’s mother and the
police; and that B.’s brothers each provided
facts that provided corroboration as to
elements of her testimony.

(footnote omitted). The Arizona Court of Appeals granted
review, but “[s]eeing no reason to repeat the trial court’s
analysis here,” it adopted the trial court’s decision and denied
relief. The Arizona Supreme Court again summarily denied
review.

Having exhausted his state remedies, Vega initiated the
instant federal habeas proceedings, seeking relief pursuant to
28 U.S.C. § 2254. In a report and recommendation, the
magistrate judge recommended denying the petition on the
merits. The district court agreed with the magistrate judge’s
report, noting specifically that “[i]n light of the victim’s
testimony [that she had recanted], the additional instances of
recantations would have been ‘largely cumulative in their
basic effect.’” The district court then concluded that “[g]iven
the reasons the Arizona courts stated for not granting relief,
this Court does not find that the state courts’ decision
involved an unreasonable application of federal law.”
However, the district court granted a certificate of
10 VEGA V. RYAN

appealability for Vega’s ineffective assistance of counsel
claim. Vega timely appealed.5

II. DISCUSSION

A. The AEDPA Standard

This case is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA). Under AEDPA,
habeas relief can be granted only if the state court’s
proceedings “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” or resulted in a decision that 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)(1), (2).

A decision involves an “unreasonable application” of
clearly established federal law under § 2254(d)(1) if it
“identifies the correct governing legal principle . . . but
unreasonably applies that principle to the facts of the
prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413
(2000). Thus, “[t]he pivotal question is whether the state
court’s application” of the Supreme Court precedent “was
unreasonable[,]” Harrington v. Richter, 131 S. Ct. 770, 785
(2011), as opposed to merely “incorrect or erroneous[,]”
Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In applying this
standard, we must give “state-court decisions . . . the benefit
of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24 (2002)

5
Vega argues that counsel failed in other respects. Because we find
counsel’s failure to call Father Dan dispositive, we do not address Vega’s
other claims of error.
 VEGA V. RYAN 11

(per curiam), and we will refrain from issuing a writ “so long
as fairminded jurists could disagree on the correctness of the
state court’s decision.” Richter, 131 S. Ct. at 786 (internal
quotation marks and citation omitted).

Under § 2254(d)(2), the “unreasonable determination”
clause, “a state-court’s factual determination is not
unreasonable merely because the federal habeas court would
have reached a different conclusion in the first instance.”
Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (internal quotation
marks and citation omitted). Instead, we presume that the
state court’s factual findings are correct unless the petitioner
rebuts the presumption of correctness by clear and convincing
evidence. Rice v. Collins, 546 U.S. 333, 338–39 (2006)
(citing 28 U.S.C. § 2254(e)(1)).

B. Ineffective Assistance of Counsel

The “clearly established federal law” for ineffective
assistance of counsel claims is articulated in Strickland. See
Williams, 529 U.S. at 390. “Surmounting Strickland’s high
bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,
371 (2010). To succeed on a Strickland claim, a defendant
must prove that (1) his counsel’s performance was deficient
and (2) he was prejudiced by counsel’s deficient
performance. Strickland, 466 U.S. at 687–88.

Counsel is constitutionally deficient if the representation
“fell below an objective standard of reasonableness” such that
it was outside “the range of competence demanded of
attorneys in criminal cases.” Id. (internal quotation marks
and citation omitted). When evaluating counsel’s conduct,
“we must make every effort ‘to eliminate the distorting
effects of hindsight, . . . and to evaluate the conduct from
12 VEGA V. RYAN

counsel’s perspective at the time.’” Gulbrandson v. Ryan,
738 F.3d 976, 988 (9th Cir. 2013) (quoting Strickland,
466 U.S. at 687–88).

A defendant is prejudiced by counsel’s deficient
performance if “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. A
“reasonable probability is a probability sufficient to
undermine confidence in the outcome” of a proceeding. Id.
Thus, a petitioner need not prove “counsel’s actions more
likely than not altered the outcome,” but rather he must
demonstrate that “[t]he likelihood of a different result [is]
substantial, not just conceivable.” Richter, 131 S. Ct. at
791–92 (internal quotation marks and citation omitted).

Because we are reviewing the Arizona courts’ assessment
of counsel’s performance under AEDPA, our review is
necessarily “doubly deferential,” Knowles v. Mirzayance,
556 U.S. 111, 123(2009): Subject to the constraints of
Strickland, the Arizona courts must defer to counsel’s
judgments, and, subject to AEDPA’s standards, we must
defer to the Arizona courts’ assessment of counsel’s
judgment. We recognize that our state-court colleagues have
the same duty we have to adjudicate claims of constitutional
wrong, and, subject to AEDPA, we will respect their
judgments. Burt, 134 S. Ct. at 15–16; see also Stone v.
Powell, 428 U.S. 465, 494 n.35 (1976).

We apply the doubly deferential standard to review the
state court’s “last reasoned decision.” Cheney v. Washington,
614 F.3d 987, 995 (9th Cir. 2010). Here, the Arizona
Superior Court’s decision denying Vega’s petition for
post-conviction relief is the last reasoned decision because
 VEGA V. RYAN 13

the Arizona Court of Appeal’s adopted the Superior Court’s
reasoning and the Arizona Supreme Court summarily
affirmed.

1. Deficient representation

In this case, the Arizona Superior Court properly
recognized the authority of Strickland and correctly cited its
two prongs. Applying Strickland, it determined that
“counsel’s performance did not fall below the standard”
because “a defendant is responsible for assisting counsel with
his defense” and “[i]t is illogical and unreasonable to hold
[counsel] responsible for Petitioner’s failure to divulge [B’s
recantation to Father Dan] to him.” With all due respect, we
hold that the state court’s conclusion in this regard is 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).

First, the state court’s holding that counsel had no
responsibility to obtain information known to his client is an
unreasonable application of Supreme Court precedent. In
Rompilla v. Beard, the Supreme Court stated, in an AEDPA
case, that counsel was ineffective in failing to examine the
defendant’s prior-conviction file for mitigating evidence.
545 U.S. 374, 387–89 (2005). There, counsel failed to
present substantial mitigation evidence during the penalty
phase of a capital murder case even though the evidence was
documented in the “readily available” file on Rompilla’s
prior conviction. Id. at 383–85. The Court found this point
“clear and dispositive: the lawyers were deficient in failing to
examine the court file on Rompilla’s prior conviction.” Id. at
383. The Court observed that “Rompilla’s own contributions
to any mitigation case were minimal,” “[t]here were times
14 VEGA V. RYAN

when Rompilla was even actively obstructive by sending
counsel off on false leads,” and Rompilla’s family members
were not helpful. Id. at 381. Despite the difficulties counsel
had with their client, the Court held that “[n]o reasonable
lawyer would forgo examination of the file thinking he could
do as well by asking the defendant or family relations [about
potential mitigating evidence].” Id. at 389. Because of
counsel’s deficiency, the Court held that the “state courts
were objectively unreasonable in concluding that counsel
could reasonably decline to make any effort to review the
file.” Id. at 390.

Rompilla is dispositive here. The records Rompilla’s
counsel failed to investigate included Rompilla’s school
records, prior conviction records, and mental health
reports—all matters that Rompilla himself would have had
some knowledge of and could have assisted counsel in
determining whether such documents would have produced
probative mitigation evidence. The Court made clear in
Rompilla that counsel had a duty—independent of whatever
knowledge his client may have—to make reasonable
investigation including, at a minimum, reviewing “the court
file” on Rompilla’s prior conviction. If Rompilla’s counsel
had a duty to review the court file in a prior case, it is
minimally incumbent on Vega’s counsel to review the file of
the previous attorneys who handled the charges in the same
case.

We think it apparent from Rompilla that the client’s own
knowledge of what is in his file is irrelevant to the discharge
of his counsel’s duty. We applied this principle in Stankewitz
v. Wong, 698 F.3d 1163 (9th Cir. 2012), a pre-AEDPA case.
Stankewitz’s conviction following his first trial was reversed
on appeal because of a conflict with counsel. Id. at 1165.
 VEGA V. RYAN 15

Prior to his second trial, new counsel was appointed, and the
second counsel failed to present mitigating evidence. Id. at
1166. “[D]espite [his] possession of [prior counsel’s] files,
he did not investigate any of the evidence contained within
them. He did not contact [prior counsel] to discuss the
contents of the files.” Id. at 1171. Relying on Rompilla and
Wiggins v. Smith, 539 U.S. 510 (2003), we had little difficulty
finding ineffective assistance of counsel “because, despite the
fact that the evidence ‘was in [his] hands,’ he ‘failed to do
any further investigation or development of this critical
mitigation evidence.’” Id. at 1172 (alteration in original)
(quoting Summerlin v. Schriro, 427 F.3d 623, 632 (9th Cir.
2005) (en banc)).

Here, it is undisputed that Vega’s first two attorneys
documented Father Dan’s exculpatory testimony in Vega’s
file, which his trial counsel neglected to read. As in
Rompilla, the fact that Vega did not take it upon himself to
inform his counsel about Father Dan did not excuse counsel
from conducting a rudimentary investigation. After
Rompilla, talking with a client is not an adequate substitute
for reading the client’s case file.

Second, but relatedly, it is also clearly established federal
law that counsel is deficient if he or she possesses
exculpatory evidence but has no strategic reason for
withholding it. In Wiggins, counsel for the guilt-phase of a
death penalty trial informed jurors “‘[y]ou’re going to hear
that Kevin Wiggins has had a difficult life’ but ‘[d]uring the
proceedings themselves, [ ] counsel introduced no evidence
of Wiggins’ life history.’” 539 U.S. at 515. There, counsel
were aware of appellant’s background, including Wiggins’
terrible childhood, and they knew “[t]hey had available to
them both the presentence investigation report [ ] prepared by
16 VEGA V. RYAN

the Division of Parole and Probation, . . . as well as ‘more
detailed social service records that recorded incidences of
physical and sexual abuse, an alcoholic mother, placements
in foster care, and borderline retardation.’” 539 U.S. at 518
(internal citation and quotation marks omitted). Nevertheless,
counsel decided not to present any of the powerful mitigating
evidence. Applying Strickland, the Court decided that
counsel’s conduct constituted a Sixth Amendment violation
because “a competent attorney, aware of [Wiggins’s] history,
would have introduced it at sentencing in an admissible
form.” Id. at 535.

Here, Vega’s previous two attorneys documented
exculpatory evidence in Vega’s client file. For example,
Shepherd wrote that the victim told Father Dan that “Dad
didn’t do it” and that B told her mother she needed “to get
this off my chest.” Similarly, Ellinwood wrote “Father Dan
— [B] recanted to him.” Yet a third note included
information about the victim’s question, “Mom what if I was
lying what would they do?” and “Father Dan — told him
Daddy never did anything to her.” Vega’s trial counsel
admitted, however, that he did not remember the contents of
Shepherd’s notes and did not remember reviewing
Ellinwood’s notes. On the motion for a new trial, the County
argued that B’s recantation to Father Dan was not newly
discovered evidence, but rather that “[t]here [was] no due
diligence done in finding out this information by current
counsel,” and that trial counsel “was ineffective for not
finding out this information.” And Darby admitted that, if the
court refused his request for a new trial on the grounds of
newly discovered evidence, he would be forced to confess his
own ineffective assistance. So, like counsel in Rompilla,
Vega’s counsel was deficient because he failed to read
Vega’s case file even though the case’s procedural history put
 VEGA V. RYAN 17

counsel on notice that the federal government and Arizona
had previously dismissed the charges against his client and
the arguably exculpatory evidence was “at his fingertips.”

While Strickland protects “strategic choices made after
thorough investigation of law and facts,” 466 U.S. at 690, had
Darby known of B’s recantation to Father Dan, there was no
strategic reason for not calling Father Dan as a witness. He
was available to testify and told the court that he had not
heard B’s statement in confessional and, thus, was willing to
testify as to what she told him. Importantly, Father Dan was
not a member of the family and had no reason to misrepresent
B’s recantation. He thus would have brought credibility to
B’s mother’s claims that B had recanted to her.

We recently applied Strickland in an AEDPA case in
which there was also a failure to investigate evidence of a
recantation. In Cannedy v. Adams, 706 F.3d 1148 (9th Cir.
2013), Cannedy was convicted of committing lewd and
lascivious acts on his stepdaughter. Id. at 1151. Cannedy
alleged that his counsel was ineffective because he ignored
evidence that the victim had recanted her allegations in an
internet posting to a friend. Id. at 1161. As in this case,
Cannedy’s “trial was largely a ‘he said, she said’ case, with
no physical evidence linking [Cannedy] to the alleged abuse.”
Id. Cannedy was the sole witness in his defense, and his only
defense was that the victim had fabricated the allegations. Id.
The internet posting would have explained the victim’s
motive to implicate Cannedy falsely. Id. Under these
circumstances, “[n]o competent lawyer would have declined
to interview such a potentially favorable witness when that
witness had been clearly identified, the witness was easily
accessible and willing to provide information, and trial
counsel faced a dearth of defense witnesses.” Id.
18 VEGA V. RYAN

We reach a similar conclusion here. There is no dispute
that counsel’s failure to review his client’s file led to a failure
to present a key witness to the jury. Strickland and Rompilla
tell us that a reasonable lawyer would not have committed
such a lapse. Even viewing the facts as a defense lawyer
would have done at the time we can conceive of no
circumstances where the decision not to read a client’s file—a
file prepared to answer the same charges—would be
reasonable. Furthermore, there can be no suggestion that
counsel made a strategic decision not to interview or call
Father Dan because counsel did not even know about the
victim’s recantation to Father Dan until a one or two weeks
after the trial. See Thomas v. Chappell, 678 F.3d 1086,
1104–05 (9th Cir. 2012) (finding Strickland error when trial
counsel’s failure to call a witness could not be excused as a
tactical decision because counsel did not have sufficient
information to make an informed decision).

In light of the uncontroverted evidence before the Arizona
Superior Court and the Arizona Court of Appeals, the state
court’s holding that Vega’s counsel rendered effective
assistance of counsel is an unreasonable application of clearly
established federal law, namely Strickland and Rompilla.
Because counsel has a duty to investigate, even if his or her
client does not divulge relevant information, we hold that
reasonable jurists could not disagree that trial counsel’s
performance here was deficient.

2. Prejudice

As we have previously observed, to prevail on his
ineffective assistance claim, Vega must demonstrate
prejudice as well as deficient performance. Strickland,
466 U.S. at 687–88. Ordinarily, to demonstrate prejudice, the
 VEGA V. RYAN 19

petitioner must show “it is reasonably likely the result would
have been different” but for counsel’s ineptitude. Richter,
131 S. Ct. at 792 (internal quotation marks and citation
omitted). And “[t]he likelihood of a different result must be
substantial, not just conceivable.” Id.; see also Strickland,
466 U.S. at 694 (holding that petitioner must prove there is “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.”).

“Under AEDPA, we do not apply the Strickland standard
de novo.” Gulbrandson, 738 F.3d at 988. Instead of
considering whether petitioner met the burden of proving
prejudice, we must decide “whether the state post-conviction
court was reasonable in determining that [the petitioner] was
not prejudiced.” Id. at 990. In assessing whether Vega was
prejudiced by counsel’s conduct “we must compare the
evidence that actually was presented to the jury with that
which could have been presented had counsel acted
appropriately.” Cannedy, 706 F.3d at 1163 (quotation marks
and citation omitted); see also Williams, 529 U.S. at 397–98.

The Superior Court decided that Vega was not prejudiced
by counsel’s performance because counsel rendered effective
assistance. Nevertheless, assuming arguendo that counsel’s
performance was deficient, the Superior Court found that
additional recantation evidence would have been cumulative
because “the jury heard [the victim] testify that she recanted
to her mother.” Thus, the Superior Court concluded, there
was no prejudice because there was sufficient evidence
against Vega, including the victim’s testimony, which of
itself was “enough to sustain a conviction for child
molestation” under State v. Munoz, 561 P.2d 1238, 1241
20 VEGA V. RYAN

(Ariz. 1976), and the testimony of other witnesses that
corroborated B’s testimony.

The fact that a child victim’s testimony is sufficient
evidence to sustain a conviction for child molestation does
not mean that Vega was not prejudiced by his counsel’s
shortcomings. For that precise reason, when the child’s
testimony goes to the heart of the state’s case, evidence that
the victim has recanted her allegations to a responsible adult
is critical to the defense. And when that evidence is not
cumulative of other testimony, the defendant has been
deprived of a key witness and has suffered prejudice.

The Arizona Court of Appeals found that “the victim’s
credibility was a central issue.” Indeed, here as in Cannedy,
“Petitioner’s trial was largely a ‘he said, she said’ case, with
no physical evidence linking Petitioner to the alleged abuse.”
706 F.3d at 1161. Further, like many sexual abuse cases, the
victim’s credibility was essential both to the prosecution and
to the defense. Vega’s entire theory in defense was that B
had fabricated her allegations against him. B’s credibility
was also a key issue because there was evidence that
undermined both the victim’s and Vega’s testimony. On the
one hand, the victim admitted that she recanted the first set of
allegations. But, on the other hand, the victim’s mother and
brothers corroborated other aspects of her testimony. Here is
the summary of the evidence from the Arizona Superior
Court’s opinion denying post-conviction relief:

The requirements of Strickland are clear:
Petitioner must demonstrate both that
counsel’s efforts fell below the standard
prevailing in the community, and that these
failings prejudiced him. The finds that
 VEGA V. RYAN 21

Petitioner has failed [to] demonstrate that
counsel’s efforts fell below the prevailing
professional norms. The Court further finds
that, even assuming arguendo that counsel’s
efforts fell below standards, Petitioner has
failed to prove prejudice as a result of those
actions. The evidence against Petitioner
included, but by no means was limited to: B’.s
testimony; the fact that Petitioner failed to
deny the molests to Both B.’s mother and the
police; and that B.’s brothers each provided
facts that provided corroboration as to
elements of her testimony.4 . . . Accordingly,
given the evidence, the Court finds that
Petitioner was not rendered ineffective
assistance of counsel at trial.

______________
4
B.’s oldest brother, Emmanuel Ramirez,
testified that he had eavesdropped on their
mother speaking with Petitioner on the phone
after the allegations were made, and that
Petitioner answered Molly Vega’s question
“Did you do it?” with “Yes.” Emmanuel went
on to say that Molly Vegas then “went crazy
and she got rid of anything like pictures and
wedding, like everything with the wedding,
burned it, threw stuff out. Emmanuel further
testified that he remembered a time in the new
house (the back house) when B. kept going in
and out of a room in which Pete was, which
story corroborated B.’s testimony as to the
events surrounding one of the molests. B.’s
22 VEGA V. RYAN

brother Daniel Bracamonte testified that he
recalled an occasion when Petitioner told him
to go to bed when B. Was allowed to stay up.
Daniel later heard tickling and laughing
coming from the master bedroom, where B.
and Petitioner were. Later tha[t] night, as B.
Came into the room in which the two were
sleeping he saw her wiping her eyes, as
though she was crying. This story closely
corroborates B.’s testimony that Vega
molested her while tickling her.

(references to trial transcripts omitted; footnote in original).
But this evidence, standing by itself, was likely not sufficient
to convict Vega without B’s testimony. No one, except for B,
could testify to the acts of which she accused Vega.

The strongest corroborating evidence referred to by the
Superior Court was testimony from Emmanuel Ramirez, B’s
older brother, that he had picked up a phone and overheard
his mother, Molly, ask Vega “did you do it” and that Vega
answered “yes.” But Emmanuel’s testimony was subject to
vigorous cross-examination:

Q. Before you heard your mother ask [Vega]
if he did it, and before you heard that answer,
you don’t know what your mother and [Vega]
were talking about, do you?

A. No.

Q. You have no idea what they were talking
about at the time, did you?
 VEGA V. RYAN 23

A. No.

Moreover, defense counsel elicited that Emmanuel, who was
18 at the time he testified and 14 or 15 at the time of the
phone call, had been dealing cocaine since he was 14 and was
using drugs on a daily basis during that period. He
remembered little of the incident except for his mother’s
question and Vega’s answer:

Q. Now, you don’t remember any dates about
when any of these things that you talked about
happened, correct?

A. Correct.

Q. Is it because of a bad memory because of
drug use back then?

A. No, I can’t remember none of my
childhood.

Q. None at all?

A. Nothing.

Q. What’s the last thing you remember about
your childhood?

A. Nothing.

Q. Just kind of all a blank to you?

A. I remember a little bit but nothing – I just
can’t really remember anything.
24 VEGA V. RYAN

The evidence “that Petitioner failed to deny the molests
to both B.’s mother and the police,” has minimal probative
value because silence is inherently ambiguous. See United
States v. Hale, 422 U.S. 171, 176 (1975) (“In most
circumstances silence is so ambiguous that it is of little
probative force.”). When Molly confronted Vega about the
allegations, he neither admitted nor denied molesting B:

Q. Well, he told you he didn’t molest [B].

A. No, he didn’t say that[.] He allowed me to
hit him on the face[.] I just hit him on the face
and he wouldn’t look[.] He wouldn’t turn to
see me, to look at me

Q. So you were beating on him?

A. I was hitting him in the face[.] He broke
my heart.

Q. What were you saying to him when you
were beating on him?

A. I was saying like, “How could you,”
things like that.

Q. And he denied it[.] He said, “I didn’t do
anything?”

A. I told him to leave. He couldn’t say
anything.

Although “[s]ilence gains more probative weight where it
persists in the face of accusation,” under these circumstances
 VEGA V. RYAN 25

it is questionable whether the “confrontation naturally called
for a reply,” id., given that Vega “couldn’t say anything.”

Similarly, Vega’s response, or lack there of, to police
officer questioning was flimsy evidence. Lieutenant Neilsen
informed Vega of his Miranda rights and interviewed Vega
after he was arrested on February 6, 1996. The state asked
Lieutenant Neilsen about Vega’s demeanor during the
interview:

Q. Can you describe for us his facial
expression or what he did when you said you
were investigating child molestation?

....

A. I did not see any emotion at all.

Q. Did he, after you told him you were
investigating allegations of child molestation,
did he deny engaging in child molestation?

A. No.

Q. Did he ever throughout the course of your
discussion with him ever deny the allegations
that were being made?

A. No.

Q. Did he admit them?

A. No.
26 VEGA V. RYAN

Q. What would he do?

A. He would explain them.

Detective Dollar interviewed Vega, who voluntarily met
officers at the sheriff’s station, around April 28, 2000 after B
made additional allegations. Once again, the state asked
about Vega’s demeanor:

Q. When you talked to the defendant, Peter
Vega, describe to us his demeanor. What he
was looking like or doing when you were
talking to them.

A. Mr. Vega was fidgeting, playing with his
hands, his thumbs. He would look down
frequently while [the detective] was asking
questions of him. He seemed to be somewhat
nervous and he would wipe his brow with his
hands.

During redirect examination, the detective agreed that many
people are nervous during a police interview:

Q. Did you characterize Mr. Vega’s
demeanor when you spoke with him? He was
interviewed for an hour and a half about child
molestation to be unusual, the way to act
when being confronted by the police about
child molestation?

A. Not necessarily, no.
 VEGA V. RYAN 27

Q. You would expect somebody to be
nervous right?

A. Yes.

Q. Especially being in the police department
and being confronted by allegations of child
molest, fidgeting and sweating and being
nervous and fidgeting, that’s not all that
uncommon, is it?

A. No.

Assuming arguendo that Lieutenant Neilsen’s testimony
was admissible, it had little probative value because “every
post-arrest silence is insolubly ambiguous because of what
the State is required to advise the person arrested.” Doyle v.
Ohio, 426 U.S. 610, 617 (1976). Indeed, given that the “Self-
Incrimination Clause [is] applicable to state interrogations at
a police station,” Michigan v. Tucker, 417 U.S. 433, 443
(1974), it is feasible that Vega did not want to say anything
that could be used against him in court. Miranda v. Arizona,
384 U.S. 436, 469 (1966) (“The warning of the right to
remain silent must be accompanied by the explanation that
anything said can and will be used against the individual in
court.”).

Further, Vega’s nervousness was not particularly
indicative of guilt. After all, it is not unusual for a person to
be nervous when interacting with a police officer. Whren v.
United States, 517 U.S. 806, 817 (1996) (recognizing that
even traffic stops entail “‘a possibly unsettling show of
authority” and “may create substantial anxiety.’” (quoting
Delware v. Prouse, 440 U.S. 648, 657 (1979))); see also
28 VEGA V. RYAN

United States v. Chavez-Valenzuea, 268 F.3d 719, 726 (9th
Cir. 2001) (“Encounters with police officers are necessarily
stressful for law-abiders and criminals alike.”), amended by
United States v. Chavez-Valenzuela, 279 F.3d 1062 (9th Cir.
2002). And nervousness is especially likely in an
interrogation environment which “carries its own badge of
intimidation” because it is “created for no purpose other than
to subjugate the individual to the will of his examiner.”
Miranda, 384 U.S. at 457.

In addition, the other evidence referred to by the Arizona
Superior Court corroborates B’s testimony but only in a most
superficial way—that on one occasion when B claims she
was molested, B was present in a room with Vega,6 and that
on another occasion she appeared to be crying after Vega
tickled her.7 The details of what else may have
happened—aside from being present in the room with Vega
or being tickled by Vega—depend entirely on B’s own
testimony.

Both the state and the defense were well aware of the
Vega’s dysfunctional household. The state’s theory was that
Molly did not want to break up the family and pressured B to
recant her testimony. At the post-trial hearing, the state
argued that Father Dan’s testimony would further its theory
by demonstrating that Molly was willing to arrange for B to

6
Specifically, Emmanuel testified that he remembered a time in the new
house (the back house) when B kept going in and out of a room that Vega
was in.
7
Daniel Bracamonte, one of B’s brothers, testified that he recalled an
occasion when Petitioner told him to go to bed when B allowed to stay up.
Daniel later heard tickling and laughing coming from the master bedroom,
where B and Vega were.
 VEGA V. RYAN 29

see Father Dan and recant in order to save her marriage to
Vega. On the other hand, as the Arizona Superior Court
noted, “Mr. Darby’s clear strategy was the defense of actual
innocence, contending that B. fabricated the allegations in
order to remove Vega from the household in an effort to
resolve the family’s chaotic home environment.” Counsel
argued that “these are fabricated allegations of molest’” and
that “Vega and Molly Vega’s ‘very chaotic, topsy turvy
alcohol-fueled, drug-fueled relationship that these kids were
exposed to’ was a motivating factor in B.’s fabrications, as
‘every time [B.] would say that Pedro Vega molested her, he
would be taken out of the house.’” Counsel “elicit[ed]
testimony from B. that both Vega and her mother were using
and selling drugs, and that this made B. mad.”

We, of course, cannot resolve these difficult questions of
credibility. But it is apparent that Father Dan’s testimony
went squarely to the core issue in the case: Was B telling the
truth about Vega? And Father Dan’s testimony was not
merely cumulative of Molly’s testimony. It is true that the
jury heard Molly say that B had recanted her accusations, but
the jury never knew that one of her recantations was before
her local priest. Importantly, the recantation to Father Dan
was an occasion distinct from another recantation that B
made. Father Dan was not a witness to the conversation
between B and her mother. Rather, he testified at the
post-trial hearing that Molly brought B to him, and that he
spoke to her alone. The fact that a victim recants in front of
two people may make the testimony of one witness
cumulative to the testimony of the second witness. But when
the victim recants on two separate occasions to two different
people, it is harder to describe the testimony of the second
witness as merely cumulative of the first. In this case in
particular, where the family is so dysfunctional and family
30 VEGA V. RYAN

members have pitted themselves against other family
members, the testimony of Father Dan would have been of
much greater weight than the testimony of B’s mother, who,
according to the state, had reason to want her daughter to
recant. Father Dan had no such motive; he was not related to
the family and would have been in a better position to judge
B’s demeanor.

Perhaps more importantly, Arizona law, like many other
jurisdictions, has recognized the special relationship between
priests and their parishioners. See Ariz. Rev. Stat. § 13-
4062(3); Waters v. O’Connor, 103 P.3d 292, 295–97 (Ariz.
Ct. App. 2004) (explaining that the priest-penitent privilege
exists because of the “urgent need of people to confide in,
without fear of reprisal, those entrusted with the pressing task
of offering spiritual guidance” (quotation marks and citation
omitted)); see also Trammel v. United States, 445 U.S. 40, 51
(1980) (“The priest-penitent privilege recognizes the human
need to disclose to a spiritual counselor, in total and absolute
confidence, what are believed to be flawed acts or thoughts
and to receive priestly consolation and guidance in return.”).
Father Dan testified that he did not hear B’s recantation in
confessional—neither he nor B has claimed-priest-penitent
privilege—and thus he was free and willing to testify as to
their conversation. Our point is not that the priest-penitent
relationship is involved here, only that a priest’s testimony,
because of the special relationship and confidence that
penitents have in their priests, may carry additional weight
with a jury. At the least, B’s conversation with Father Dan
would have carried much greater weight with the jury than
her recantation to her mother.
 VEGA V. RYAN 31

In sum, Father Dan’s testimony “would have added an
entirely new dimension to the jury’s assessment” of the
victim’s testimony such that “there is a reasonable probability
that the [unpresented] evidence would have altered at least
one juror’s assessment [of the evidence].” United States v.
Kohring, 637 F.3d 895, 905–06 (9th Cir. 2010) (quotation
marks and citation omitted). Father Dan’s testimony would
have undermined the prosecution’s argument that the victim’s
mother had pressured her to recant in order to protect Vega
(her husband), because the victim independently recanted—in
private—to a priest who had no reason to pressure her. And,
given the unique role that religious officials play in people’s
lives, the testimony of a priest who heard what he believed to
be a sincere recantation could have tipped the scales in
Vega’s favor.

Finally, there is an additional indicator of prejudice here
because the jury had a difficult time reaching a verdict.8 See
Kotteakos v. United States, 328 U.S. 750, 764 (1946)
(discussing harmless error and explaining that “the appellate
court can[not] escape altogether taking account of the [trial]
outcome. To weigh the errors effect against the entire setting
of the record without relation to the verdict or judgment
would be almost to work in a vacuum.”); see also Stankewitz,
698 F.3d at 1175; Kennedy v. Lockyer, 379 F.3d 1041, 1056
n.18 (9th Cir. 2001). Indeed, the jurors could not reach a
unanimous verdict on three of the eight counts and the jury
found Vega guilty of a lesser-included offense on the third

8
The jury initially informed the court that it was deadlocked “with no
apparent change of agreement.” After receiving additional instructions the
jury convicted Vega on count one, a lesser-included offense on count
three, and counts five, six, and eight. The jury could not reach a verdict
on counts two, four, and seven.
32 VEGA V. RYAN

count. Given that at least one juror voted that Vega was not
guilty on three counts, “there is a reasonable probability that
at least one juror would have struck a different balance” on
the remaining five counts had he or she heard Father Dan’s
testimony. Wiggins, 539 U.S. at 537.

Accordingly, we conclude that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”
Strickland, 466 U.S. at 689. We further conclude that the
state court’s findings that Father Dan’s testimony would have
been cumulative and would have had no effect on the verdict
is an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings. 28 U.S.C.
§ 2254(d)(2). With all due respect for our state colleagues,
the state court’s application of Strickland was objectively
unreasonable because Vega’s counsel was ineffective when
he failed to review his client’s file and failed to interview and
then call Father Dan in his client’s defense. The Supreme
Court has held that such a failure to investigate exculpatory
evidence necessarily constitutes deficient performance even
when the client knew of the evidence, but never informed his
attorney. Rompilla, 545 U.S. at 383. Given that B’s
testimony was the cornerstone of the state’s case, that Father
Dan’s testimony would have undermined her credibility, and
that the jury struggled to reach the verdict, “there is a
reasonably probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
 VEGA V. RYAN 33

III. CONCLUSION

The judgment of the district court is reversed. The case
is remanded with instructions to grant the writ of habeas
corpus.

REVERSED AND REMANDED.