                                                                          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filed on July 27, 2015 is withdrawn.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                            NOT FOR PUBLICATION                                  OCT 20 2015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.

                                         -2-
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,


                                            -3-
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.




                                          -4-
      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


                                          -5-
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.




                                           -6-
      REVERSED and REMANDED with instructions to GRANT a writ of

habeas corpus.




                                 -7-
                                                                             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.
