                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 22 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL LAMAR ROSE,                             No.    15-56950

                Petitioner-Appellant,           D.C. No.
                                                5:11-cv-01654-MMM-JPR
 v.

A. HEDGPETH; XAVIER BECERRA,                    MEMORANDUM*
Attorney General,

                Respondents-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                       Argued and Submitted May 14, 2018
                              Pasadena, California

Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.

      Michael Lamar Rose appeals from the denial of his petition for a writ of

habeas corpus. As the parties are familiar with the facts, we do not recount them

here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse

in part, and remand with instructions.

      1. Denial-of-Counsel Claim. Contrary to petitioner’s argument, the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
California court of appeal adjudicated his denial-of-counsel claim “on the merits.”

28 U.S.C. § 2254(d). Petitioner’s opening brief in that court featured two

arguments, the latter of which asserted the constructive denial of counsel during

post-trial proceedings. The court of appeal’s opinion also addressed petitioner’s

appeal in two parts, indicating that the court recognized that petitioner was

asserting two distinct arguments, the second of which related to the denial of

counsel, and that it sought to address each of those arguments in turn. The court of

appeal’s citation, moreover, to California case law premised on the Sixth

Amendment right to counsel, see People v. Smith, 863 P.2d 192, 196–99 (Cal.

1993) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)), indicates that the court

“understood itself to be deciding a question with federal constitutional

dimensions,” Johnson v. Williams, 568 U.S. 289, 305 (2013), and thus that it

resolved petitioner’s claim “on the merits,” 28 U.S.C. § 2254(d).

      The U.S. Supreme Court has never held that a post-trial, pre-appeal motion

for a new trial is a “critical stage” to which the Sixth Amendment right to counsel

applies. United States v. Cronic, 466 U.S. 648, 659 (1984). There being no such

precedent, petitioner’s argument that the California court of appeal’s decision was

“contrary to, or involved 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), necessarily fails. See, e.g., Marshall v. Rodgers, 569 U.S. 58, 61–64


                                          2
(2013) (per curiam); Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).

      2. Ineffective-Assistance Claim. Because respondents failed to “raise the

issue of procedural default in [the] district court or on appeal,” they have forfeited

any argument that petitioner’s ineffective-assistance claim is procedurally

defaulted. Chaker v. Crogan, 428 F.3d 1215, 1220 (9th Cir. 2005). 28 U.S.C.

§ 2254(d) does not apply, moreover, because petitioner did not raise his standalone

ineffective-assistance claim until his second state habeas petition and the

California superior court order denying that petition stated only that it was “a serial

petition alleging no new facts.” We must therefore review petitioner’s ineffective-

assistance claim de novo. See James v. Ryan, 733 F.3d 911, 914 (9th Cir. 2013);

see also Fox v. Johnson, 832 F.3d 978, 985–86 (9th Cir. 2016).

      Taking his specific factual allegations as true, petitioner has pleaded a

colorable ineffective-assistance claim in two respects. See Schriro v. Landrigan,

550 U.S. 465, 474 (2007). First, trial counsel may have been deficient in declining

to view, investigate, and attempt to introduce an alleged video of an interview in

which petitioner’s alleged victim Denmon purportedly admitted to framing

petitioner. Second, trial counsel may have been deficient in declining to call

Charlene Bell and Africa Bolden, who petitioner avers would have testified that

Denmon admitted, among other things, that “he was allowing [petitioner] to

possibly spend his life in prison” to retaliate against one of petitioner’s co-


                                           3
defendants. The record does not disclose trial counsel’s reasons, strategic or

otherwise, for not investigating and not attempting to introduce either the alleged

video or Denmon’s purported admission to Bell and Bolden of having framed

petitioner.1 See Strickland v. Washington, 466 U.S. 668, 690–91 (1984); Howard

v. Clark, 608 F.3d 563, 573 n.4 (9th Cir. 2010); see also Duncan v. Ornoski, 528

F.3d 1222, 1237 n.7 (9th Cir. 2008).

      Petitioner makes a colorable argument, moreover, that there is a “reasonable

probability that, but for counsel’s unprofessional errors, the result . . . would have

been different.” Strickland, 466 U.S. at 694. As the only witness who could have

seen whether petitioner was either a willing participant in the crime or merely

acting under duress, Denmon’s credibility was a central issue in petitioner’s trial,

and evidence that he had admitted to having framed petitioner to retaliate against

petitioner’s co-defendant would have undercut Denmon’s credibility. Moreover,

the jury sent the trial court seven notes seeking, among other things, clarification as


1
  Petitioner has otherwise failed to plead a colorable ineffective-assistance claim:
“the record refutes” his theory that trial counsel was deficient in refusing to call
Peggy Ramos and Laquanda Rose to testify that associates of petitioner’s co-
defendant Donald Shorts intimidated them at their home after the murder-robbery.
Landrigan, 550 U.S. at 474. Counsel’s explanations at the Marsden hearing for his
refusal to call these witnesses—that evidence regarding petitioner’s reasons for his
out-of-state travel may have evidenced consciousness of guilt, thereby
undermining his duress defense, and that calling Ramos and Rose may have
prompted damaging rebuttal testimony by the prosecution—were well within the
range of sound trial strategy. See Brodit v. Cambra, 350 F.3d 985, 992–93 (9th
Cir. 2003).

                                           4
to aiding-and-abetting liability; a playback of petitioner’s police interview; and

readbacks of Denmon’s testimony regarding his and petitioner’s movements before

the crime. The jury was also deadlocked ten-to-two or eleven-to-one as to

petitioner even after it had already convicted his co-defendants. These

circumstances suggest that petitioner’s case was close. Petitioner has therefore

pleaded “a colorable claim [to relief].” Scott v. Schriro, 567 F.3d 573, 583 (9th

Cir. 2009) (per curiam) (alteration in original).

      Contrary to respondents’ argument, petitioner has not “failed to develop the

factual basis of [his ineffective-assistance] claim in State court proceedings” such

that 28 U.S.C. § 2254(e)(2) governs his eligibility for an evidentiary hearing.

Because the state courts denied petitioner’s second state habeas petition “without

ordering formal pleadings,” petitioner “never reached the stage of the [state

habeas] proceedings at which an evidentiary hearing should be requested” and thus

“has not shown a lack of diligence at the relevant stages of the state court

proceedings . . . .” Horton v. Mayle, 408 F.3d 570, 582 n.6 (9th Cir. 2005)

(internal quotation marks omitted) (citing Williams v. Taylor, 529 U.S. 420, 437

(2000)). Moreover, petitioner expressly requested an evidentiary hearing in the

California court of appeal. See Williams, 529 U.S. at 437. Thus, 28 U.S.C.

§ 2254(e)(2) does not apply.

      Because 28 U.S.C. § 2254(e)(2) does not bar a hearing; because petitioner


                                           5
has “raise[d] a colorable claim to relief”; and because “there has not been a state or

federal hearing on” his ineffective-assistance claim, “we must remand to the

district court for an evidentiary hearing.” Scott, 567 F.3d at 583 (brackets and

internal quotation marks omitted); see also Townsend v. Sain, 372 U.S. 293, 312–

13 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1

(1992).

      3. Accordingly, although we affirm the district court’s denial of relief as to

petitioner’s denial-of-counsel claim, we reverse the denial of relief as to

petitioner’s Strickland claim and remand the case for an evidentiary hearing at

which petitioner’s colorable allegations of ineffective assistance may be subjected

to proof. Once the factual record has been fully developed, the district court

should consider in the first instance whether petitioner has demonstrated

entitlement to habeas relief. We express no opinion on that question here.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                                          6
