dissenting:
I respectfully dissent. At bottom, this habeas matter is about the process by which indigent defendants are provided counsel. To begin with, it is not easy work. Clients, given a lawyer selected by the same government accusing them, are often suspicious that their case will be given short shrift. Added to the mix here were charges of the most serious sort (molestation of his own brother’s children in their home where he was a guest) levied against an individual with a prior criminal history. Convicted at trial and having his sentence doubled based on a prior conviction, Gonzalez had the good fortune of receiving the court-appointed assistance of Richard Such (“Such”).
Such was able to convince the state appellate court that Gonzalez’s sentence had been improperly doubled and the matter was remanded to district court for re-sentencing. At this point, Gonzalez asked the state trial court to appoint Such to represent him at re-sentencing. Through written documents and verified statements, Gonzalez established that Such had earned his confidence, knew the case well, and was willing to work at the hourly rate the county typically paid appointed counsel. Additionally, Such had already done some work on sentencing matters. The state court refused, essentially reasoning that appointment of Such was “not the way we do things around here,”1 and instead appointed Armando Garcia (“Garcia”), a local attorney utterly unfamiliar with Gonzalez’s case.
Rather than simply walking away from Gonzalez’s case, Such proceeded to write Garcia a lengthy letter, conveying information highly relevant to re-sentencing, including, importantly, that Gonzalez’s family members were sympathetic to Gonzalez and trusted him around their children, and that the victim’s mother might be willing to testify that a prison sentence was unnecessary. Such also explained that a mental health evaluation might demonstrate that Gonzalez would be unlikely to re-offend.
What did Garcia do with this information? Absolutely nothing. Garcia made no attempt to contact the family, to inquire into Gonzalez’s mental history, or to have his client evaluated by mental health ex*1018perts. At the re-sentencing, Garcia called no witnesses, only arguing that Gonzalez had a history of alcohol abuse and may have been intoxicated at the time of the acts. Even though the court had previously given Gonzalez 18 years and 5 months based on a sentencing enhancement no longer available, Gonzalez was given 16 years.
In his habeas petition, as he had in his state post-conviction petition, Gonzalez sought an evidentiary hearing on his claim that Garcia had provided him ineffective assistance of counsel. The district court, like the state court, refused to conduct an evidentiary hearing. That refusal is where I part company with my colleagues in the majority. By my lights, the district court abused its discretion in refusing to conduct an evidentiary hearing. Because he requested and was denied a hearing in state court proceedings, Gonzalez cannot be faulted for “failing] to develop the factual basis of[his] claim in State court.” Insyxiengmay v. Morgan, 403 F.3d 657, 670 (9th Cir.2005) (citing 28 U.S.C. § 2254(e)(2)). “[W]here a petitioner raises a colorable claim of ineffective assistance, and where there has not been a state or federal hearing on this claim, we must remand to the district court for an evidentiary hearing.” Stankewitz v. Woodford, 365 F.3d 706, 708 (9th Cir.2004) (quoting Smith v. McCormick, 914 F.2d 1153, 1170 (9th Cir.1990)). Gonzalez has certainly raised a “colorable claim” of ineffective assistance, and should have been afforded an evidentiary hearing on his claim.
In the face of Such’s letter, which explicitly made Garcia aware of the possible benefit to conducting a psychological evaluation and seeking the testimony of family members, it is difficult to believe that Garcia’s decision not to pursue these avenues constituted a “reasoned tactical choice.” This is especially true given that Garcia failed to even inform Gonzalez’s family members that a sentencing hearing was taking place. Without a hearing, we are left to wonder what Garcia’s excuse was for failing to pursue these simple and potentially useful steps, and his failure to pursue them certainly falls below an “objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The majority contends that Gonzalez failed to offer sufficient evidence to warrant an evidentiary hearing on his federal habeas petition. This seems to ignore Such’s letter to Garcia which reflected Such’s own investigation and suggestions on how to prepare for Gonzalez’s re-sentencing. Because Garcia followed none of the suggestions, there is of course no record of what would have happened had he done so. Only an evidentiary hearing can answer that question.
Moreover, without a hearing, we cannot know whether Garcia’s inaction prejudiced Gonzalez. It may be that family members were in fact unwilling to testify in his favor and that a mental exam would not have been helpful. But we will never know this because Garcia never raised a finger to find out. At the very least, however, Gonzalez raises a “colorable claim” that there is a “reasonable probability,” id. at 694, 104 S.Ct. 2052, that a psychiatric evaluation and family member testimony would have impacted his sentence. The majority’s suggestion that “[t]he testimony of sympathetic family members would not have impacted” any of the sentencing factors the court considered simply makes no sense and, without an evidentiary hearing, we will never know why Garcia never sought them out or what those family members would have said. But Garcia’s failure to even inquire whether family members would testify meant that the sentencing court would not hear potentially *1019critical evidence relating to both mitigation and rehabilitation.2 I would remand for an evidentiary hearing to afford Gonzalez a full and fair opportunity to pursue his claim of ineffective assistance.
. The majority claims that local routine was not the only reason for refusing to appoint Such. In fact, the only other reason given was that this was a “straightforward” case. If by "straightforward” the trial court meant a sentencing proceeding in which an appointed defense attorney simply goes through the motions, it hardly justifies refusing to appoint an experienced, previously successful lawyer who not only had Gonzalez's confidence, but had also begun a serious effort to provide fully effective sentencing representation.
. Garcia's shoddy representation is all the more troublesome given that the risk of ineffective assistance could have been easily removed had the trial court simply appointed Such to represent Gonzalez at re-sentencing. The judge’s refusal to appoint Such, essentially because it was not the usual practice, was arbitrary and contrary to common sense. There was every reason, including economy, to appoint Such, since he offered to represent Gonzalez at the same rate the state would have paid through the private defender program, and he was already familiar with the issues that would be pertinent at re-sentencing. The majority’s assertion that appointment of counsel of choice is not a panacea misses the point. In this particular case, appointment of Such might well have made a difference. But we cannot know because there was no evidentiary hearing.