Michael Lamar Rose v. A. Hedgpeth; Kamala D. Harris

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL LAMAR ROSE,
Petitioner-Appellant,
v.
A. HEDGPETH; KAMALA D. HARRIS,
Respondents-Appellees.
No. 21-55351
D.C. No.
5:11-cv-01654-FLA-JPR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Fernando L. Aenlle-Rocha, District Judge, Presiding
Argued and Submitted June 16, 2022
Pasadena, California
Before: RAWLINSON and CHRISTEN, Circuit Judges, and NAVARRO,**
District Judge.
Dissent by Judge CHRISTEN.
Michael Lamar Rose (Rose) appeals the district court’s denial of his habeas
petition filed under 18 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C.
FILED
JAN 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Gloria M. Navarro, United States District Judge for
the District of Nevada, sitting by designation.

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§ 1291. Reviewing de novo, see Fox v. Johnson, 832 F.3d 978, 985 (9th Cir.
2016), we reverse the district court’s denial of habeas relief.
The pivotal issue in this case is whether under the United States Supreme
Court’s recent decision in Shinn v. Ramirez, Rose was “at fault” or “bears
responsibility” for the undeveloped state record, thereby precluding the federal
court from developing the evidentiary record. 142 S.Ct. 1718, 1734 (2022).
We conclude that the Shinn decision does not foreclose consideration of the
evidence developed in the district court because Rose did not “fail[] to develop the
factual basis” of his claim in the California proceedings. Id. at 1728. Rose
requested new counsel under California law, asserting ineffectiveness of his trial
counsel. And Rose “expressly requested an evidentiary hearing in the California
[Court] of [A]ppeal.” Rose v. Hedgpeth, 735 F. App’x 266, 270 (9th Cir. 2018)
(citation omitted). Importantly, a prior panel of this court explicitly determined
that on these facts, Rose “ha[d] not shown a lack of diligence” in the state court
proceedings. Id.
Because Shinn does not foreclose consideration of the evidentiary record
developed in the district court, we consider Rose’s claim based on that record.
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1. Rose contends that trial counsel was ineffective for failing to call Africa
Boulden (Boulden) to testify about statements the victim, Michael Denmon
(Denmon), allegedly made describing Rose’s lack of participation in the crimes.
Ineffective assistance of counsel is established when (1) counsel’s
performance “fell below an objective standard of reasonableness” and (2) the
counsel’s deficient performance prejudiced the defense, such that there is a
“reasonable probability that . . . the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Based on the evidentiary record, trial counsel was ineffective for failing to
call Boulden to testify. Boulden’s testimony that Denmon admitted (1) Rose “was
scared”; (2) “[Rose] didn’t do anything”; and (3) two co-defendants wanted to kill
Rose but were ordered not to, would have bolstered Rose’s duress defense and
damaged the credibility of Denmon, the prosecution’s primary witness. See Rose,
735 F. App’x at 270; see also Lunbery v. Hornbeak, 605 F.3d 754, 762 (9th Cir.
2010) (noting that statements from the defendant do not carry as much weight as
“independent evidence”).
Rose was prejudiced because a prior panel of this court has already
determined that Rose made “a colorable argument . . . that there is a reasonable
probability that, but for counsel’s unprofessional errors, the results would have
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been different.” Rose, 735 F. App’x at 270. Additional evidence consistent with
Rose’s duress defense would have tipped the scales in favor of a finding of
reasonable doubt. See id. For example, Boulden’s testimony would have
corroborated Rose’s testimony that he “didn’t do anything,” but “was scared” of
his co-defendant and of being killed. See Lunbery, 605 F.3d at 762. Thus, there is
a reasonable probability that Boulden’s testimony, combined with the other
evidence introduced at trial to support Rose’s duress defense, would have resulted
in a different outcome. See Strickland, 466 U.S. at 694.
2. We expand the certificate of appealability to include Rose’s argument
that trial counsel should have interviewed Charlene Bell (Bell) and should have
sought to admit into evidence a video of Denmon that included exculpatory
statements. See Browning v. Baker, 875 F.3d 444, 471 (9th Cir. 2017), as amended
(expanding a certificate of appealability to include additional allegations of
ineffectiveness when there is a certified ineffective assistance claim already before
the court). As with Boulden, an interview with Bell would have revealed that Rose
did not shoot anyone, and that Denmon “wanted [Rose] in jail.” Notably, Bell
would have testified that Denmon conceded that Rose “was basically just caught
up at the wrong time with his own circle.” This testimony would have
corroborated Rose’s duress defense and further impeached Denmon’s testimony.
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3. Counsel’s failure to view the video containing exculpatory statements
was similarly ineffective. See Strickland, 466 U.S. at 690–91; see also Rose, 735
F. App’x at 269. For example, the video would have revealed Denmon’s desire to
blame Rose for the crime, not because he believed Rose was culpable, but because
Rose was related to the main perpetrator. See Rose, 735 F. App’x at 269. There is
a reasonable probability that the presentation of the video, together with the other
evidence that bolstered Rose’s duress defense, would have resulted in a different
outcome for Rose. See Strickland, 466 U.S. at 694; see also Rose, 735 F. App’x at
270.
Because counsel’s actions were not the result of a reasonable litigation
strategy, see Rose, 735 F. App’x at 269, we reverse the district court’s denial of
habeas relief. We remand with instructions to grant a conditional writ of habeas
corpus ordering Rose’s release unless the State of California elects within 90 days
of the issuance of the mandate to retry him. Any retrial must commence within a
reasonable time as set by the district court.
REVERSED AND REMANDED.
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Rose v. Hedgpeth, No. 21-55351
CHRISTEN, Circuit Judge., dissenting:
In my view, the intervening authority of Shinn v. Ramirez, 142 S. Ct. 1718
(2022), prevents us from considering the evidence Rose developed in the federal
district court evidentiary hearing. If we were free to consider that evidence, I
would agree with the majority that Rose demonstrated his counsel’s performance
“fell below an objective standard of reasonableness,” but I am not persuaded there
is a “reasonable probability” the result of the proceeding would have been different
but for counsel’s deficient performance. Strickland v. Washington, 466 U.S. 668,
688, 694 (1984).
Some of the statements Denmon made in the video bolstered key points of
his trial testimony, such as his testimony that Rose asked for a ride to his aunt’s
house. Other statements Denmon made in the video were helpful to Rose, such as
the statement that Rose did not shoot anyone and the statement that Rose did not
receive any money. But these statements were either uncontested or refuted by
other evidence in the record, including Rose’s admission that he received over
$400 in hush money. Bell made some statements that were consistent with Rose’s
defense, but she also said she did not think Denmon was trying to “get Rose in
trouble for something he did not do.” Similarly, though parts of Boulden’s
testimony supported Rose’s duress defense, her statements were not based on
FILED
JAN 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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personal knowledge and on cross-examination she testified that Denmon felt that
Rose had set him up. Because I do not see a reasonable probability that this
evidence would have resulted in a different outcome, I respectfully dissent.

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