                                                                            FILED
                            NOT FOR PUBLICATION                               JUL 27 2015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 (1) the district court erred by

denying his claim of ineffective assistance of counsel (IAC) because his trial

attorney failed to investigate Gugliotta’s mental defects and (2) because his IAC



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
claim was 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.

      Because the record is not sufficiently developed to determine whether

Gugliotta is entitled to relief based on his attorney’s claimed IAC, we remand for

an evidentiary hearing to consider evidence pertinent to that claim.

       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’s jurisdictional rejection of Gugliotta’s IAC claim 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); see also Cannedy v. Adams, 706 F.3d 1148, 1158 (9th Cir. 2013),
rehearing en banc denied, 733 F.3d 794 (9th Cir. 2013) (discussing the interplay
between the holdings in Harrington v. Richter, 562 U.S. 86 (2011) and Ylst). The
summary decisions produced by the California Court of Appeal and the California
Supreme Court, however, must be presumed to be 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 meritorious IAC claim, Gugliotta must demonstrate his trial

counsel’s deficient performance and resulting 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.’” Richter,

562 U.S. at 104 (quoting Strickland, 466 U.S. at 687).

      Reviewing the California courts’ denial of Gugliotta’s IAC claim, the




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“question is whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Id. at 105.

      But “the standard required to obtain an evidentiary hearing is less stringent

than that required to prove a Strickland claim.” Fairbank v. Ayers, 650 F.3d 1243,

1251 (9th Cir. 2011) (emphasis added). To be entitled to an evidentiary hearing, a

petitioner must only show a colorable claim of ineffective assistance. Earp v.

Ornoski, 431 F.3d 1158, 1170-72 (9th Cir. 2005) (emphasis added); see also

Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir. 2010).

      Gugliotta alleges that the efforts of trial counsel, Floyd Silliman, 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 soon after Gugliotta’s birth and “indicated

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. A phone call to Gugliotta’s

father by Patsy Myers, Gugliotta’s re-sentencing attorney, revealed Gugliotta’s


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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, failure to

graduate from high school—were similarly discoverable through simple

investigation.

      Silliman failed to call any witnesses and “presented no defense” during trial

according to the California Court of Appeal, and there is no convincing argument

or evidence that these were strategic choices. Cf. Cullen v. Pinholster, 131 S. Ct.

1388, 1404-08 (2011). Silliman’s alleged failures, if true, deprived Gugliotta of a

fair trial with a reliable result. Any implicit conclusion by the California courts

that Silliman rendered effective assistance of counsel would be an unreasonable

determination of these facts and an unreasonable application of clearly established

federal law under Strickland.

      The strength of the evidence showing Gugliotta’s mental defects brought

forth by Myers, Gugliotta’s re-sentencing attorney after Silliman stepped down

following trial, demonstrates a colorable claim that Gugliotta was prejudiced by

Silliman’s alleged IAC. After examining Gugliotta and reviewing available

records, forensic psychologist, Carl Osborn, found that Gugliotta’s comprehension


                                          -5-
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.” Considering evidence of

Gugliotta’s mental defects that was never presented to the trial court, our

confidence in the result of Gugliotta’s trial is undermined. Similarly, our

confidence in the summary denials of the California appellate courts is undermined

by the lack of any evidentiary hearing on this matter at any stage in the litigation.

See Nunes v. Mueller, 350 F.3d 1045, 1056 (9th Cir. 2003) (recognizing that an

evidentiary hearing assists in finding a state court’s denial of a claim to be

objectively reasonable under AEDPA and Strickland).

      Because all of Silliman’s notes were destroyed upon his death after illness, a

year after Gugliotta’s trial, the record is not sufficiently complete to satisfy us that

there can be no reasonable argument that trial counsel Silliman satisfied AEDPA’s

and Strickland’s deferential standards. Gugliotta has shown a colorable claim of

IAC and the facts of the case necessitate an evidentiary hearing. See Earp, 431

F.3d at 1166-67; Howard v. Clark, 608 F.3d 563, 572-73 (9th Cir. 2010).

      Even the victim, 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.”


                                           -6-
Gugliotta’s habeas petition merits an evidentiary hearing to address the apparent

deficient performance of Gugliotta’s trial counsel. We therefore remand to the

district court for an evidentiary hearing to supplement the record relating to

Silliman’s pre-trial investigation into Gugliotta’s mental health and to determine if

there is any reasonable argument that Silliman provided effective assistance of

counsel in his pre-trial investigation.

      AFFIRMED IN PART, and REMANDED for an evidentiary hearing.




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