FILED
UNITED STATES COURT OF APPEALS OCT 20 2015
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
ANTHONY VINCENTE GUGLIOTTA, No. 12-55246
Petitioner - Appellant, D.C. No. 2:03-cv-09615-SJO-CW
Central District of California,
v. Los Angeles
SILVIA GARCIA,
ORDER
Respondent - Appellee.
Before: PREGERSON, NOONAN, and WARDLAW, Circuit Judges.
The petition for panel rehearing is granted. The Memorandum Disposition
filed on July 27, 2015 is withdrawn. A new superseding Memorandum Disposition
and Dissent are being filed concurrently with this Order.
The petition for rehearing en banc is denied as moot. The parties may file
additional petitions for rehearing or rehearing en banc.
FILED
NOT FOR PUBLICATION OCT 20 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY VINCENTE GUGLIOTTA, No. 12-55246
Petitioner - Appellant, D.C. No. 2:03-cv-09615-SJO-CW
v.
MEMORANDUM*
SILVIA GARCIA,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted December 10, 2014
Pasadena, California
Before: PREGERSON, NOONAN, and WARDLAW, Circuit Judges.
Petitioner Anthony Vincente Gugliotta appeals the district court’s denial of
his federal habeas petition. Gugliotta argues that the district court erred by
denying his claim of ineffective assistance of counsel (IAC) because (1) his trial
attorney failed to investigate Gugliotta’s mental defects and (2) his IAC claim was
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
not adjudicated on the merits by the California state courts. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253(a).
We affirm the district court’s decision that the California courts adjudicated
Gugliotta’s claim on the merits. We reverse the district court’s denial of
Gugliotta’s habeas petition, and we remand with instructions to grant a writ of
habeas corpus.
We review de novo the district court’s denial of Gugliotta’s habeas petition.
Jennings v. Woodford, 290 F.3d 1006, 1011 (9th Cir. 2002). Because Gugliotta
filed his federal habeas petition after 1996, the Anti-Terrorism and Effective Death
Penalty Act (AEDPA) must be considered in this case.1 See Lindh v. Murphy, 521
U.S. 320, 336 (1997).
Under AEDPA, when a state court has adjudicated a habeas claim on the
1
We are not convinced by Gugliotta’s arguments that AEDPA does not
apply to this case. An examination of the state court records reveals that the
California trial court rejected Gugliotta’s IAC claim on jurisdictional grounds and,
therefore, did not produce a reasoned state court decision that the California Court
of Appeal or the California Supreme Court could have relied on. See Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991), cert denied, 134 S.Ct. 1001 (2014); see
also Cannedy v. Adams, 706 F.3d 1148, 1158 (9th Cir.), amended on denial of
reh’g en banc, 733 F.3d 794 (9th Cir. 2013) (discussing the interplay between the
holdings in Harrington v. Richter, 562 U.S. 86 (2011) and Ylst). We presume,
however, that the summary decisions produced by the California Court of Appeal
and the California Supreme Court are reasoned and on the merits. Richter, 562
U.S. at 99. Accordingly, AEDPA applies.
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merits, we grant relief only when adjudication of the claim “(1) 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 (2) 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). We may not grant relief unless the state court came to a decision that
was objectively unreasonable. Williams v Taylor, 529 U.S. 362, 409-10 (2000).
To bring a successful IAC claim, Gugliotta must demonstrate that his trial
counsel’s performance was deficient and resulted in prejudice. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). We apply “a ‘strong presumption’ that
counsel’s representation was within the ‘wide range’ of reasonable professional
assistance.” Richter, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689).
To establish prejudice, Gugliotta must show a reasonable probability that
“but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 664. “Counsel’s errors must be ‘so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.’”
Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 466 U.S. at
687).
Gugliotta alleges that the efforts of his trial counsel, Floyd Silliman,
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constituted deficient performance because of Silliman’s failure to investigate
Gugliotta’s mental defects. See, e.g., Mickey v. Ayers, 606 F.3d 1223, 1237 (9th
Cir. 2010) (noting counsel cannot ignore “abundant signs” of mental illness or rest
solely on a “preliminary examination”). The files of Jon Takasugi, Gugliotta’s first
attorney, contained medical billing records from shortly after Gugliotta’s birth, as
well as indications that “Mr. Takasugi had attempted to subpoena additional
records from the hospital and was investigating the possible mental defense at the
time he declared his conflict and was relieved.”
There is no evidence in the record that Silliman continued investigating after
replacing Takasugi, despite the fact that Gugliotta’s mental health history was
readily accessible. Patsy Myers, Gugliotta’s re-sentencing attorney, called
Gugliotta’s father and discovered that Gugliotta has had possible brain damage
since birth. Further evidence of Gugliotta’s serious mental defects—a skull
fracture as a child, a reading level that never reached higher than a third grade
level, low IQ scores from school testing, enrollment in a school for the severely
emotionally disabled, repetition of multiple grades in school, and failure to
graduate from high school—was similarly discoverable through simple
investigation.
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After trial, forensic psychologist Carl Osborn examined Gugliotta and
reviewed his records. Osborn found that Gugliotta’s comprehension abilities
“hover around the somewhat arbitrary [I.Q.] cutoff score of 70 for mild mental
retardation. . . . When combined with the effects of alcohol and cocaine
intoxication, serious doubts arise whether [Gugliotta] formed the specific intent
necessary for the crimes for which he was convicted.”
Despite easy access to all this evidence, Silliman failed to call any witnesses
at trial. According to the California Court of Appeal, Silliman “presented no
defense.” Instead, Dale Rubin, counsel for co-defendant Michael Hearns, argued
that the victim, Maria R., was a willing participant in the alleged crimes at issue,
including her own rapes. Silliman’s closing argument amounted to less than two
pages, but was really none at all, given that it simply repeated Rubin’s argument
that Maria R. lacked credibility. Though Silliman’s records were destroyed upon
his death, one cannot reasonably imagine anything in those notes that would justify
his utter failure to present any defense at all. Sitting by while Rubin put on his
defense could not have been a strategic choice, given the strength of a possible
mental health defense.
Further, the difference between the numerous and terrible crimes alleged
against Hearns, and the limited number of those alleged crimes that pertained to
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Gugliotta, demonstrates that a shared defense made no sense as a strategic choice,
but was instead outside the range of reasonable professional assistance. Even
Maria R. stated that “[Gugliotta] didn’t do anything except be with the wrong
person at the wrong time and not try and prevent the crime.” There is no
reasonable argument or evidence that sitting on the sidelines while Rubin put on a
defense for crimes more serious than those Gugliotta was accused of committing
was a strategic decision. Cf. Cullen v. Pinholster, 131 S. Ct. 1388, 1404-08 (2011).
In sum, Silliman simply ignored the “abundant signs” of Gugliotta’s mental
defects. Silliman’s failures deprived Gugliotta of a fair trial with a reliable result.
Any implicit conclusion by the California courts that Silliman rendered effective
assistance of counsel is an unreasonable determination of these facts and an
unreasonable application of clearly established federal law under Strickland.
Given the ample evidence of Gugliotta’s mental defects that was never
presented to the trial court, Gugliotta has demonstrated a reasonable probability
that but for Silliman’s unprofessional errors, the result of his trial would have been
different. Strickland, 466 U.S. at 694. Silliman simply did not perform as an
attorney, his cumulative errors prejudiced Gugliotta, and the result in Gugliotta’s
trial was not reliable. We therefore grant Gugliotta’s habeas petition.
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REVERSED and REMANDED with instructions to GRANT a writ of
habeas corpus.
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FILED
Gugliotta v. Garcia, No. 12-55246 OCT 20 2015
MOLLY C. DWYER, CLERK
Wardlaw, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully and reluctantly dissent. The California Court of Appeal’s
denial of Gugliotta’s claim of ineffective assistance of counsel for failure to present
a mental health defense is due “double deference.” See Harrington v. Richter, 562
U.S. 86, 105 (2011); Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). See
generally Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of
Qualified Immunity: The Court’s Ever Increasing Limitations on the Development
and Enforcement of Constitutional Rights and Some Particularly Unfortunate
Consequences, 113 U. Mich. L. Rev. 1219 (2015). Giving the California courts the
deference that is “due” according to the Supreme Court, there are “arguments or
theories [that] . . . could have supported” the Court of Appeal’s conclusion that
either counsel’s performance was not deficient or that any deficient performance
was not prejudicial. Harrington, 562 U.S. at 102. I would therefore affirm the
district court’s denial of the writ.