NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 07 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SALVADOR A. RODRIGUEZ, No. 15-15679
Petitioner-Appellant, D.C. No. 4:04-cv-02233-PJH
v.
MEMORANDUM*
DERRAL G. ADAMS, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Submitted September 2, 2016**
San Francisco, California
Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.
Salvador Rodriguez appeals the district court’s order denying his motion to
excuse procedural default. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
In his habeas petition, Rodriguez claims that his trial counsel rendered
ineffective assistance of counsel (“IAC”) by failing to interview two
eyewitnesses—Vonree Alberty and Kenneth Jackson. However, Rodriguez did not
timely raise this claim in state court. Therefore, we may not grant habeas relief on
Rodriguez’s procedurally defaulted IAC claim, unless Rodriguez “can demonstrate
cause for the default and actual prejudice as a result of the alleged violation of
federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
In Martinez v. Ryan, the Supreme Court explained that a federal court may
find “cause” to excuse a defendant’s procedural default only when certain
requirements are met. 132 S. Ct. 1309, 1320 (2012). The requirement relevant on
this appeal: the underlying IAC claim must be “substantial,” meaning that it has
“some merit.” Id. at 1318–19. The standard for determining whether a claim is
substantial is comparable to the standard for issuing certificates of appealability,
see id., whereby “a petitioner must show that reasonable jurists could debate
whether . . . the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further,”
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks and
alteration omitted).
2
Under Strickland v. Washington, to succeed on an IAC claim, a prisoner
“must show that counsel’s performance was deficient” and “that the deficient
performance prejudiced the defense.” 466 U.S. 668, 687 (1984). Thus, “[a]n IAC
claim has merit where (1) counsel’s ‘performance was unreasonable under
prevailing professional standards,’ and (2) ‘there is a reasonable probability that
but for counsel’s unprofessional errors, the result would have been different.’”
Cook v. Ryan, 688 F.3d 598, 610 (9th Cir. 2012) (quoting Hasan v. Galaza, 254
F.3d 1150, 1154 (9th Cir. 2001)).
Even if we were to assume that trial counsel’s performance was deficient,
Rodriguez is still not entitled to relief from his procedural default, because (as the
district court determined) he has not evidenced a substantial claim that trial
counsel’s performance resulted in prejudice at trial. See Hurles v. Ryan, 752 F.3d
768, 782 (9th Cir. 2014). The eyewitness accounts of Alberty and Jackson would
have been cumulative to some of the evidence already presented at trial and often
inconsistent with Rodriguez’s own testimony. Further, their testimonies would not
have supported Rodriguez’s claim that the use of deadly force was justified, and
neither had suggested they would be willing to testify on behalf of the defense at
the time of trial.
3
Importantly, the government’s case against Rodriguez was also strong.
Rodriguez admitted that he fired a gun at a group of people, despite not observing
them carrying any weapons. Although he claimed he fired the weapon only in an
attempt to scare the group off, independent witnesses testified that he fired directly
at the group with his arm parallel to the ground, and the coroner’s preliminary
testimony established “that the bullet entered the victim’s ear and traveled straight
through the brain at neither an up or down angle.” Jackson and Alberty did not see
Rodriguez fire the weapon and, therefore, could not have rebutted the
government’s evidence that Rodriguez fired directly at the group.
Having concluded that Rodriguez fails to demonstrate cause under Martinez,
we need not separately inquire whether he can demonstrate prejudice under
Coleman.
AFFIRMED.
4