FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEDRO IMPERIAL VEGA,

Petitioner-Appellant,

v.

CHARLES L. RYAN; CARSON

MCWILLIAMS,

Respondents-Appellees.

No. 12-15631

D.C. No.

4:09-cv-00473-

CKJ

ORDER AND

OPINION

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted

September 12, 2013—San Francisco, California

Filed May 19, 2014

Before: Mary M. Schroeder and Jay S. Bybee, Circuit

Judges, and Ralph R. Beistline, Chief District Judge.*

Per Curiam Opinion

* The Honorable Ralph R. Beistline, United States District Judge for the

District of Alaska, sitting by designation.
2 VEGA V. RYAN

SUMMARY**

Habeas Corpus

The panel withdrew an opinion filed November 13, 2013,

and filed a new opinion reversing the district court’s denial of

a 28 U.S.C. § 2254 habeas corpus petition challenging the

petitioner’s conviction of sexually abusing his stepdaughter.

The panel held that the state court’s application of

Strickland v. Washington was objectively unreasonable

because trial counsel was ineffective when he failed to review

the petitioner’s client file and failed to interview, and then

call as a witness, the priest to whom the victim had recanted

her allegations of her stepfather’s sexual abuse. The panel

held that because counsel has a duty to investigate even if his

or her client does not divulge relevant information,

reasonable jurists could not disagree that trial counsel’s

performance here was deficient.

Regarding prejudice, the panel held that there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. 

The panel concluded that the state court’s finding that the

priest’s testimony would have been cumulative and would

have had no effect on the verdict is an unreasonable

determination of the facts in light of the evidence presented

in the state court proceedings.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
VEGA V. RYAN 3

COUNSEL

Patricia A. Taylor (argued), Law Office of Patricia A. Taylor,

Tucson, Arizona, for Petitioner-Appellant.

Thomas C. Horne, Attorney General, Kent Cattani, Division

Chief Counsel, Joseph T. Maziarz, Section Chief Counsel,

David A. Sullivan and Nicholas Klingerman (argued),

Assistant Attorneys General, Tucson, Arizona, for

Respondents-Appellees.

ORDER

The Opinion filed November 13, 2013, and appearing at

735 F.3d 1093, is withdrawn. It may not be cited as

precedent by or to this court or any district court of the Ninth

Circuit.

OPINION

PER CURIAM:

Petitioner Pedro Imperial Vega was convicted of sexually

abusing his stepdaughter. In this appeal of the district court’s

denial of his petition for a writ of habeas corpus, Vega argues

that his trial counsel was constitutionally ineffective when he

failed to review Vega’s client file and, as a result, failed to

call as a witness a Catholic priest to whom the victim had

recanted her allegations of her stepfather’s sexual abuse.
4 VEGA V. RYAN

We hold that reasonable jurists could not disagree that

counsel’s failing deprived Vega of his constitutional right to

effective counsel. Accordingly, the state court’s decision was

an unreasonable application of Strickland v. Washington,

466 U.S. 668 (1984). The district court erred by denying

Vega’s petition and we reverse.

I. BACKGROUND

Pedro Vega was convicted of contributing to the

delinquency of a minor, molestation of a child, and three

counts of sexual abuse of a child under fifteen, based on

incidents that occurred between 1995 and 1999. The victim

was Vega’s stepdaughter, B. As detailed by the Arizona

Superior Court:

In 1996, the victim (B.) originally raised

molest allegations, such which formed the

basis for Counts 1–3. Those allegations were

originally charged in the federal system, then

dismissed after Petitioner’s attorney (Denise

Shepard) in that case learned that the victim

had recanted such allegations, both to her

mother, and a priest, Father Daniel P.

McLaughlin. Those charges were later

reinstated in state court (CR-53329, in which

Petitioner was represented by Ralph

Ellinwood), but dismissed after Mr.

Ellinwood learned of the recantations. Counts

4–8 arose from allegations made by the victim

in 2001.1

 

1

 All mistakes in original.
VEGA V. RYAN 5

State charges were brought for a third time following a new

set of allegations by B, and the grand jury indicted Vega on

three counts based on the first set of allegations (counts 1–3)

and five counts based on the second set of allegations (counts

4–8). Yet a third lawyer, David Darby, represented Vega at

trial. After two mistrials, a jury found Vega guilty of five of

the eight counts.2 He was sentenced to twenty-eight years in

prison.

Both Vega and B testified at his trial, and the trial largely

turned on their testimony and the testimony of other family

members. During the trial, B testified that she recanted the

first set of allegations to her mother, but no evidence was

introduced that she had also recanted to Father McLaughlin

(“Father Dan”).

After Vega’s conviction, his counsel filed a motion for a

new trial or to vacate judgment, on the grounds that he had

just learned that the victim had recanted her allegations to

Father Dan. The trial court held an evidentiary hearing where

it heard testimony from several witnesses. First, Father Dan

testified—for the first time in the trial court—that B’s

mother, Molly Vega, brought B to his office, that he spoke

with B alone, that there was a “crisis in the family,” and that

B told him “he [Vega] didn’t do it.” He stated that because

it was not a “confessional matter,” he was “at liberty to tell

[the court] what the nature of the conversation was.” Second,

Vega’s first two attorneys, Denice Shepherd and Ralph

Ellinwood testified. Shepherd represented Vega when he was

charged with federal offenses that were later dismissed. She

2 The jury convicted Vega on count one, a lesser-included offense on

count three, and counts five, six, and eight. The jury could not reach a

verdict on the other counts.
6 VEGA V. RYAN

recalled that she first learned of B’s recantation to Father Dan

from B’s mother, Molly. In her written notes from that

conversation, she wrote down Father Dan’s contact

information and underneath it wrote “[B] told him Dad didn’t

do it.” She later spoke with Father Dan and he confirmed that

B had recanted. Attorney Ellinwood was a public defender

who represented Vega against the first set of state charges

that were also dismissed. Ellinwood kept notes from two

conversations he had regarding Father Dan. His notes, which

were in Vega’s case file and are in the record before this

court, reflect that he met with Vega, who told him that “[B]

recanted to [Father Dan].” He later met with Molly, and his

notes reflect “Father Dan – told him Daddy never did

anything to her.” Third, Judge Howard Fell, who was the

county attorneywho prosecuted the second case, testified that

he had no recollection of the case, but authenticated his

hand-written notes (which he surmised were notes of a phone

conversation with Ellinwood), which read in part: “There is

no reasonable probability of success [in obtaining a

conviction.] . . . There are recantations from the beginning

that the child still [maintains].” He confirmed that the

charges against Vega were dismissed.

Vega’s counsel in the third case, Darby, testified and

advised the court that he learned of the victim’s recantation

to Father Dan from B’s aunt about a week to two weeks after

the verdict. He also admitted that it was possible that Vega

had mentioned the matter to him, but that he had not seen

Ellinwood’s hand-written notes about B’s recantation to

Father Dan in his client file. He later told the court that he

“[did not] remember reviewing any records of Mr.

Ellinwood.” Counsel acknowledged that if Vega knew that

B recanted to Father Dan and did not tell him, Vega “d[id] so

at his own peril,” but urged the court to vacate the conviction
VEGA V. RYAN 7

on due process and Brady3grounds. Darby also

acknowledged that if the court refused to grant a new trial, he

would have to argue that he provided ineffective assistance to

Vega. Following the hearing, the trial court denied the

motion for a new trial or to vacate because Vega and his two

prior counsel were aware of B’s recantation to Father Dan,

and thus Father Dan’s statements were not “newly

discovered” evidence under Ariz. R. Crim. P. 24.2(a)(2).

On direct appeal to the Arizona Court of Appeals, Vega

argued that the trial court had erred by denying his motion for

judgment of acquittal or a new trial. The Arizona Court of

Appeals denied his appeal on the merits, agreeing with the

superior court that B’s recantation to the priest was not

“newly discovered evidence.” The court of appeals also

agreed with the trial court that “[a]t a minimum . . . Vega did

not exercise due diligence” because “B.’s mother, Vega’s

sister and presumably Vega himself all knew and told others

about B.’s statements to the priest.” Finally, the court of

appeals concluded that the evidence would not have been

material because “the priest’s proffered testimony about B.’s

statements would merely have been cumulative to B.’s own

testimony that she had recanted her allegations to her mother

and a counselor.”4 The court concluded that there was not a

“reasonable probability” that the priest’s testimony would

have changed the outcome of the case. The Arizona Supreme

Court summarily denied review.

 

3 Brady v. Maryland, 73 U.S. 83 (1963).

4 The court of appeals agreed with the trial court that there was no

evidence the state knew of B’s recantation to Father Dan, and thus there

was no Brady violation.
8 VEGA V. RYAN

Vega then sought state post-conviction relief on the

grounds of ineffective assistance of counsel. The Arizona

Superior Court held a two-day evidentiary hearing in 2008,

and issued a detailed minute order. Reciting the standard for

ineffective assistance of counsel under Strickland, the court

refused to find

ineffective assistance in that [counsel] failed

to investigate the victim’s recantation to

“Father Dan.” This Court, at trial, determined

that Petitioner himself was aware of the

recantation. . . . The Court declines to find

post-conviction relief appropriate on this

ground, given that a defendant is responsible

for assisting counsel with his defense. It is

illogical and unreasonable to hold [counsel]

responsible for Petitioner’s failure to divulge

such information to him. Clearly, counsel’s

performance did not fall below the standard,

and Petitioner cannot have been prejudiced, as

he was aware of the recantation and himself,

failed to reveal it to counsel.

The court concluded:

The requirements of Strickland are clear:

Petitioner must demonstrate both that

counsel’s efforts fell below the standard

prevailing in the community, and that these

failings prejudiced him. The Court finds that

Petitioner has failed [to] demonstrate that

counsel’s efforts fell below the prevailing

professional norms. The Court further finds

that, even assuming arguendo that counsel’s
VEGA V. RYAN 9

efforts fell below standards, Petitioner has

failed to prove prejudice as a result of those

actions. The evidence against Petitioner

included, but by no means was limited to: B.’s

testimony; the fact that Petitioner failed to

deny the molests to both B.’s mother and the

police; and that B.’s brothers each provided

facts that provided corroboration as to

elements of her testimony.

(footnote omitted). The Arizona Court of Appeals granted

review, but “[s]eeing no reason to repeat the trial court’s

analysis here,” it adopted the trial court’s decision and denied

relief. The Arizona Supreme Court again summarily denied

review.

Having exhausted his state remedies, Vega initiated the

instant federal habeas proceedings, seeking relief pursuant to

28 U.S.C. § 2254. In a report and recommendation, the

magistrate judge recommended denying the petition on the

merits. The district court agreed with the magistrate judge’s

report, noting specifically that “[i]n light of the victim’s

testimony [that she had recanted], the additional instances of

recantations would have been ‘largely cumulative in their

basic effect.’” The district court then concluded that “[g]iven

the reasons the Arizona courts stated for not granting relief,

this Court does not find that the state courts’ decision

involved an unreasonable application of federal law.” 

However, the district court granted a certificate of
10 VEGA V. RYAN

appealability for Vega’s ineffective assistance of counsel

claim. Vega timely appealed.5

II. DISCUSSION

A. The AEDPA Standard

This case is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). Under AEDPA,

habeas relief can be granted only if the state court’s

proceedings “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 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)(1), (2).

A decision involves an “unreasonable application” of

clearly established federal law under § 2254(d)(1) if it

“identifies the correct governing legal principle . . . but

unreasonably applies that principle to the facts of the

prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413

(2000). Thus, “[t]he pivotal question is whether the state

court’s application” of the Supreme Court precedent “was

unreasonable[,]” Harrington v. Richter, 131 S. Ct. 770, 785

(2011), as opposed to merely “incorrect or erroneous[,]”

Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In applying this

standard, we must give “state-court decisions . . . the benefit

of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24 (2002)

5 Vega argues that counsel failed in other respects. Because we find

counsel’s failure to call Father Dan dispositive, we do not address Vega’s

other claims of error.
VEGA V. RYAN 11

(per curiam), and we will refrain from issuing a writ “so long

as fairminded jurists could disagree on the correctness of the

state court’s decision.” Richter, 131 S. Ct. at 786 (internal

quotation marks and citation omitted).

Under § 2254(d)(2), the “unreasonable determination”

clause, “a state-court’s factual determination is not

unreasonable merely because the federal habeas court would

have reached a different conclusion in the first instance.” 

Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (internal quotation

marks and citation omitted). Instead, we presume that the

state court’s factual findings are correct unless the petitioner

rebuts the presumption of correctness byclear and convincing

evidence. Rice v. Collins, 546 U.S. 333, 338–39 (2006)

(citing 28 U.S.C. § 2254(e)(1)).

B. Ineffective Assistance of Counsel

The “clearly established federal law” for ineffective

assistance of counsel claims is articulated in Strickland. See

Williams, 529 U.S. at 390. “Surmounting Strickland’s high

bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356,

371 (2010). To succeed on a Strickland claim, a defendant

must prove that (1) his counsel’s performance was deficient

and (2) he was prejudiced by counsel’s deficient

performance. Strickland, 466 U.S. at 687–88.

Counsel is constitutionally deficient if the representation

“fell below an objective standard of reasonableness” such that

it was outside “the range of competence demanded of

attorneys in criminal cases.” Id. (internal quotation marks

and citation omitted). When evaluating counsel’s conduct,

“we must make every effort ‘to eliminate the distorting

effects of hindsight, . . . and to evaluate the conduct from
12 VEGA V. RYAN

counsel’s perspective at the time.’” Gulbrandson v. Ryan,

738 F.3d 976, 988 (9th Cir. 2013) (quoting Strickland,

466 U.S. at 687–88).

A defendant is prejudiced by counsel’s deficient

performance if “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. A

“reasonable probability is a probability sufficient to

undermine confidence in the outcome” of a proceeding. Id.

Thus, a petitioner need not prove “counsel’s actions more

likely than not altered the outcome,” but rather he must

demonstrate that “[t]he likelihood of a different result [is]

substantial, not just conceivable.” Richter, 131 S. Ct. at

791–92 (internal quotation marks and citation omitted).

Because we are reviewing the Arizona courts’ assessment

of counsel’s performance under AEDPA, our review is

necessarily “doubly deferential,” Knowles v. Mirzayance,

556 U.S. 111, 123(2009): Subject to the constraints of

Strickland, the Arizona courts must defer to counsel’s

judgments, and, subject to AEDPA’s standards, we must

defer to the Arizona courts’ assessment of counsel’s

judgment. We recognize that our state-court colleagues have

the same duty we have to adjudicate claims of constitutional

wrong, and, subject to AEDPA, we will respect their

judgments. Burt, 134 S. Ct. at 15–16; see also Stone v.

Powell, 428 U.S. 465, 494 n.35 (1976).

We apply the doubly deferential standard to review the

state court’s “last reasoned decision.” Cheney v. Washington,

614 F.3d 987, 995 (9th Cir. 2010). Here, the Arizona

Superior Court’s decision denying Vega’s petition for

post-conviction relief is the last reasoned decision because
VEGA V. RYAN 13

the Arizona Court of Appeal’s adopted the Superior Court’s

reasoning and the Arizona Supreme Court summarily

affirmed.

1. Deficient representation

In this case, the Arizona Superior Court properly

recognized the authority of Strickland and correctly cited its

two prongs. Applying Strickland, it determined that

“counsel’s performance did not fall below the standard”

because “a defendant is responsible for assisting counsel with

his defense” and “[i]t is illogical and unreasonable to hold

[counsel] responsible for Petitioner’s failure to divulge [B’s

recantation to Father Dan] to him.” With all due respect, we

hold that the state court’s conclusion in this regard is 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).

First, the state court’s holding that counsel had no

responsibility to obtain information known to his client is an

unreasonable application of Supreme Court precedent. In

Rompilla v. Beard, the Supreme Court stated, in an AEDPA

case, that counsel was ineffective in failing to examine the

defendant’s prior-conviction file for mitigating evidence. 

545 U.S. 374, 387–89 (2005). There, counsel failed to

present substantial mitigation evidence during the penalty

phase of a capital murder case even though the evidence was

documented in the “readily available” file on Rompilla’s

prior conviction. Id. at 383–85. The Court found this point

“clear and dispositive: the lawyers were deficient in failing to

examine the court file on Rompilla’s prior conviction.” Id. at

383. The Court observed that “Rompilla’s own contributions

to any mitigation case were minimal,” “[t]here were times
14 VEGA V. RYAN

when Rompilla was even actively obstructive by sending

counsel off on false leads,” and Rompilla’s family members

were not helpful. Id. at 381. Despite the difficulties counsel

had with their client, the Court held that “[n]o reasonable

lawyer would forgo examination of the file thinking he could

do as well by asking the defendant or family relations [about

potential mitigating evidence].” Id. at 389. Because of

counsel’s deficiency, the Court held that the “state courts

were objectively unreasonable in concluding that counsel

could reasonably decline to make any effort to review the

file.” Id. at 390.

Rompilla is dispositive here. The records Rompilla’s

counsel failed to investigate included Rompilla’s school

records, prior conviction records, and mental health

reports—all matters that Rompilla himself would have had

some knowledge of and could have assisted counsel in

determining whether such documents would have produced

probative mitigation evidence. The Court made clear in

Rompilla that counsel had a duty—independent of whatever

knowledge his client may have—to make reasonable

investigation including, at a minimum, reviewing “the court

file” on Rompilla’s prior conviction. If Rompilla’s counsel

had a duty to review the court file in a prior case, it is

minimally incumbent on Vega’s counsel to review the file of

the previous attorneys who handled the charges in the same

case.

We think it apparent from Rompilla that the client’s own

knowledge of what is in his file is irrelevant to the discharge

of his counsel’s duty. We applied this principle in Stankewitz

v. Wong, 698 F.3d 1163 (9th Cir. 2012), a pre-AEDPA case. 

Stankewitz’s conviction following his first trial was reversed

on appeal because of a conflict with counsel. Id. at 1165. 
VEGA V. RYAN 15

Prior to his second trial, new counsel was appointed, and the

second counsel failed to present mitigating evidence. Id. at

1166. “[D]espite [his] possession of [prior counsel’s] files,

he did not investigate any of the evidence contained within

them. He did not contact [prior counsel] to discuss the

contents of the files.” Id. at 1171. Relying on Rompilla and

Wiggins v. Smith, 539 U.S. 510 (2003), we had little difficulty

finding ineffective assistance of counsel “because, despite the

fact that the evidence ‘was in [his] hands,’ he ‘failed to do

any further investigation or development of this critical

mitigation evidence.’” Id. at 1172 (alteration in original)

(quoting Summerlin v. Schriro, 427 F.3d 623, 632 (9th Cir.

2005) (en banc)).

Here, it is undisputed that Vega’s first two attorneys

documented Father Dan’s exculpatory testimony in Vega’s

file, which his trial counsel neglected to read. As in

Rompilla, the fact that Vega did not take it upon himself to

inform his counsel about Father Dan did not excuse counsel

from conducting a rudimentary investigation. After

Rompilla, talking with a client is not an adequate substitute

for reading the client’s case file.

Second, but relatedly, it is also clearly established federal

law that counsel is deficient if he or she possesses

exculpatory evidence but has no strategic reason for

withholding it. In Wiggins, counsel for the guilt-phase of a

death penalty trial informed jurors “‘[y]ou’re going to hear

that Kevin Wiggins has had a difficult life’ but ‘[d]uring the

proceedings themselves, [ ] counsel introduced no evidence

of Wiggins’ life history.’” 539 U.S. at 515. There, counsel

were aware of appellant’s background, including Wiggins’

terrible childhood, and they knew “[t]hey had available to

them both the presentence investigation report [ ] prepared by
16 VEGA V. RYAN

the Division of Parole and Probation, . . . as well as ‘more

detailed social service records that recorded incidences of

physical and sexual abuse, an alcoholic mother, placements

in foster care, and borderline retardation.’” 539 U.S. at 518

(internal citation and quotation marks omitted). Nevertheless,

counsel decided not to present any of the powerful mitigating

evidence. Applying Strickland, the Court decided that

counsel’s conduct constituted a Sixth Amendment violation

because “a competent attorney, aware of [Wiggins’s] history,

would have introduced it at sentencing in an admissible

form.” Id. at 535.

Here, Vega’s previous two attorneys documented

exculpatory evidence in Vega’s client file. For example,

Shepherd wrote that the victim told Father Dan that “Dad

didn’t do it” and that B told her mother she needed “to get

this off my chest.” Similarly, Ellinwood wrote “Father Dan

— [B] recanted to him.” Yet a third note included

information about the victim’s question, “Mom what if I was

lying what would they do?” and “Father Dan — told him

Daddy never did anything to her.” Vega’s trial counsel

admitted, however, that he did not remember the contents of

Shepherd’s notes and did not remember reviewing

Ellinwood’s notes. On the motion for a new trial, the County

argued that B’s recantation to Father Dan was not newly

discovered evidence, but rather that “[t]here [was] no due

diligence done in finding out this information by current

counsel,” and that trial counsel “was ineffective for not

finding out this information.” And Darby admitted that, if the

court refused his request for a new trial on the grounds of

newly discovered evidence, he would be forced to confess his

own ineffective assistance. So, like counsel in Rompilla,

Vega’s counsel was deficient because he failed to read

Vega’s case file even though the case’s procedural history put
VEGA V. RYAN 17

counsel on notice that the federal government and Arizona

had previously dismissed the charges against his client and

the arguably exculpatory evidence was “at his fingertips.”

While Strickland protects “strategic choices made after

thorough investigation of law and facts,” 466 U.S. at 690, had

Darby known of B’s recantation to Father Dan, there was no

strategic reason for not calling Father Dan as a witness. He

was available to testify and told the court that he had not

heard B’s statement in confessional and, thus, was willing to

testify as to what she told him. Importantly, Father Dan was

not a member of the family and had no reason to misrepresent

B’s recantation. He thus would have brought credibility to

B’s mother’s claims that B had recanted to her.

We recently applied Strickland in an AEDPA case in

which there was also a failure to investigate evidence of a

recantation. In Cannedy v. Adams, 706 F.3d 1148 (9th Cir.

2013), Cannedy was convicted of committing lewd and

lascivious acts on his stepdaughter. Id. at 1151. Cannedy

alleged that his counsel was ineffective because he ignored

evidence that the victim had recanted her allegations in an

internet posting to a friend. Id. at 1161. As in this case,

Cannedy’s “trial was largely a ‘he said, she said’ case, with

no physical evidence linking [Cannedy] to the alleged abuse.” 

Id. Cannedy was the sole witness in his defense, and his only

defense was that the victim had fabricated the allegations. Id.

The internet posting would have explained the victim’s

motive to implicate Cannedy falsely. Id. Under these

circumstances, “[n]o competent lawyer would have declined

to interview such a potentially favorable witness when that

witness had been clearly identified, the witness was easily

accessible and willing to provide information, and trial

counsel faced a dearth of defense witnesses.” Id.
18 VEGA V. RYAN

We reach a similar conclusion here. There is no dispute

that counsel’s failure to review his client’s file led to a failure

to present a key witness to the jury. Strickland and Rompilla

tell us that a reasonable lawyer would not have committed

such a lapse. Even viewing the facts as a defense lawyer

would have done at the time we can conceive of no

circumstances where the decision not to read a client’s file—a

file prepared to answer the same charges—would be

reasonable. Furthermore, there can be no suggestion that

counsel made a strategic decision not to interview or call

Father Dan because counsel did not even know about the

victim’s recantation to Father Dan until a one or two weeks

after the trial. See Thomas v. Chappell, 678 F.3d 1086,

1104–05 (9th Cir. 2012) (finding Strickland error when trial

counsel’s failure to call a witness could not be excused as a

tactical decision because counsel did not have sufficient

information to make an informed decision).

In light of the uncontroverted evidence before the Arizona

Superior Court and the Arizona Court of Appeals, the state

court’s holding that Vega’s counsel rendered effective

assistance of counsel is an unreasonable application of clearly

established federal law, namely Strickland and Rompilla. 

Because counsel has a duty to investigate, even if his or her

client does not divulge relevant information, we hold that

reasonable jurists could not disagree that trial counsel’s

performance here was deficient.

2. Prejudice

As we have previously observed, to prevail on his

ineffective assistance claim, Vega must demonstrate

prejudice as well as deficient performance. Strickland,

466 U.S. at 687–88. Ordinarily, to demonstrate prejudice, the
VEGA V. RYAN 19

petitioner must show “it is reasonably likely the result would

have been different” but for counsel’s ineptitude. Richter,

131 S. Ct. at 792 (internal quotation marks and citation

omitted). And “[t]he likelihood of a different result must be

substantial, not just conceivable.” Id.; see also Strickland,

466 U.S. at 694 (holding that petitioner must prove there is “a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.”).

“Under AEDPA, we do not apply the Strickland standard

de novo.” Gulbrandson, 738 F.3d at 988. Instead of

considering whether petitioner met the burden of proving

prejudice, we must decide “whether the state post-conviction

court was reasonable in determining that [the petitioner] was

not prejudiced.” Id. at 990. In assessing whether Vega was

prejudiced by counsel’s conduct “we must compare the

evidence that actually was presented to the jury with that

which could have been presented had counsel acted

appropriately.” Cannedy, 706 F.3d at 1163 (quotation marks

and citation omitted); see also Williams, 529 U.S. at 397–98.

The Superior Court decided that Vega was not prejudiced

by counsel’s performance because counsel rendered effective

assistance. Nevertheless, assuming arguendo that counsel’s

performance was deficient, the Superior Court found that

additional recantation evidence would have been cumulative

because “the jury heard [the victim] testify that she recanted

to her mother.” Thus, the Superior Court concluded, there

was no prejudice because there was sufficient evidence

against Vega, including the victim’s testimony, which of

itself was “enough to sustain a conviction for child

molestation” under State v. Munoz, 561 P.2d 1238, 1241
20 VEGA V. RYAN

(Ariz. 1976), and the testimony of other witnesses that

corroborated B’s testimony.

The fact that a child victim’s testimony is sufficient

evidence to sustain a conviction for child molestation does

not mean that Vega was not prejudiced by his counsel’s

shortcomings. For that precise reason, when the child’s

testimony goes to the heart of the state’s case, evidence that

the victim has recanted her allegations to a responsible adult

is critical to the defense. And when that evidence is not

cumulative of other testimony, the defendant has been

deprived of a key witness and has suffered prejudice.

The Arizona Court of Appeals found that “the victim’s

credibility was a central issue.” Indeed, here as in Cannedy,

“Petitioner’s trial was largely a ‘he said, she said’ case, with

no physical evidence linking Petitioner to the alleged abuse.” 

706 F.3d at 1161. Further, like many sexual abuse cases, the

victim’s credibility was essential both to the prosecution and

to the defense. Vega’s entire theory in defense was that B

had fabricated her allegations against him. B’s credibility

was also a key issue because there was evidence that

undermined both the victim’s and Vega’s testimony. On the

one hand, the victim admitted that she recanted the first set of

allegations. But, on the other hand, the victim’s mother and

brothers corroborated other aspects of her testimony. Here is

the summary of the evidence from the Arizona Superior

Court’s opinion denying post-conviction relief:

The requirements of Strickland are clear:

Petitioner must demonstrate both that

counsel’s efforts fell below the standard

prevailing in the community, and that these

failings prejudiced him. The finds that
VEGA V. RYAN 21

Petitioner has failed [to] demonstrate that

counsel’s efforts fell below the prevailing

professional norms. The Court further finds

that, even assuming arguendo that counsel’s

efforts fell below standards, Petitioner has

failed to prove prejudice as a result of those

actions. The evidence against Petitioner

included, but by no means was limited to: B’.s

testimony; the fact that Petitioner failed to

deny the molests to Both B.’s mother and the

police; and that B.’s brothers each provided

facts that provided corroboration as to

elements of her testimony.

4

. . . Accordingly,

given the evidence, the Court finds that

Petitioner was not rendered ineffective

assistance of counsel at trial.

______________

4 B.’s oldest brother, Emmanuel Ramirez,

testified that he had eavesdropped on their

mother speaking with Petitioner on the phone

after the allegations were made, and that

Petitioner answered Molly Vega’s question

“Did you do it?” with “Yes.” Emmanuel went

on to say that Molly Vegas then “went crazy

and she got rid of anything like pictures and

wedding, like everything with the wedding,

burned it, threw stuff out. Emmanuel further

testified that he remembered a time in the new

house (the back house) when B. kept going in

and out of a room in which Pete was, which

story corroborated B.’s testimony as to the

events surrounding one of the molests. B.’s
22 VEGA V. RYAN

brother Daniel Bracamonte testified that he

recalled an occasion when Petitioner told him

to go to bed when B. Was allowed to stay up. 

Daniel later heard tickling and laughing

coming from the master bedroom, where B.

and Petitioner were. Later tha[t] night, as B.

Came into the room in which the two were

sleeping he saw her wiping her eyes, as

though she was crying. This story closely

corroborates B.’s testimony that Vega

molested her while tickling her.

(references to trial transcripts omitted; footnote in original). 

But this evidence, standing by itself, was likely not sufficient

to convict Vega without B’s testimony. No one, except for B,

could testify to the acts of which she accused Vega.

The strongest corroborating evidence referred to by the

Superior Court was testimony from Emmanuel Ramirez, B’s

older brother, that he had picked up a phone and overheard

his mother, Molly, ask Vega “did you do it” and that Vega

answered “yes.” But Emmanuel’s testimony was subject to

vigorous cross-examination:

Q. Before you heard your mother ask [Vega]

if he did it, and before you heard that answer,

you don’t know what your mother and [Vega]

were talking about, do you?

A. No.

Q. You have no idea what they were talking

about at the time, did you?
VEGA V. RYAN 23

A. No.

Moreover, defense counsel elicited that Emmanuel, who was

18 at the time he testified and 14 or 15 at the time of the

phone call, had been dealing cocaine since he was 14 and was

using drugs on a daily basis during that period. He

remembered little of the incident except for his mother’s

question and Vega’s answer:

Q. Now, you don’t remember any dates about

when any of these things that you talked about

happened, correct?

A. Correct.

Q. Is it because of a bad memory because of

drug use back then?

A. No, I can’t remember none of my

childhood.

Q. None at all?

A. Nothing.

Q. What’s the last thing you remember about

your childhood?

A. Nothing.

Q. Just kind of all a blank to you?

A. I remember a little bit but nothing – I just

can’t really remember anything.
24 VEGA V. RYAN

The evidence “that Petitioner failed to deny the molests

to both B.’s mother and the police,” has minimal probative

value because silence is inherently ambiguous. See United

States v. Hale, 422 U.S. 171, 176 (1975) (“In most

circumstances silence is so ambiguous that it is of little

probative force.”). When Molly confronted Vega about the

allegations, he neither admitted nor denied molesting B:

Q. Well, he told you he didn’t molest [B].

A. No, he didn’t say that[.] He allowed me to

hit him on the face[.] I just hit him on the face

and he wouldn’t look[.] He wouldn’t turn to

see me, to look at me

Q. So you were beating on him?

A. I was hitting him in the face[.] He broke

my heart.

Q. What were you saying to him when you

were beating on him?

A. I was saying like, “How could you,”

things like that.

Q. And he denied it[.] He said, “I didn’t do

anything?”

A. I told him to leave. He couldn’t say

anything.

Although “[s]ilence gains more probative weight where it

persists in the face of accusation,” under these circumstances
VEGA V. RYAN 25

it is questionable whether the “confrontation naturally called

for a reply,” id., given that Vega “couldn’t say anything.”

Similarly, Vega’s response, or lack there of, to police

officer questioning was flimsy evidence. Lieutenant Neilsen

informed Vega of his Miranda rights and interviewed Vega

after he was arrested on February 6, 1996. The state asked

Lieutenant Neilsen about Vega’s demeanor during the

interview:

Q. Can you describe for us his facial

expression or what he did when you said you

were investigating child molestation?

. . . .

A. I did not see any emotion at all.

Q. Did he, after you told him you were

investigating allegations of child molestation,

did he deny engaging in child molestation?

A. No.

Q. Did he ever throughout the course of your

discussion with him ever deny the allegations

that were being made?

A. No.

Q. Did he admit them?

A. No.
26 VEGA V. RYAN

Q. What would he do?

A. He would explain them.

Detective Dollar interviewed Vega, who voluntarily met

officers at the sheriff’s station, around April 28, 2000 after B

made additional allegations. Once again, the state asked

about Vega’s demeanor:

Q. When you talked to the defendant, Peter

Vega, describe to us his demeanor. What he

was looking like or doing when you were

talking to them.

A. Mr. Vega was fidgeting, playing with his

hands, his thumbs. He would look down

frequently while [the detective] was asking

questions of him. He seemed to be somewhat

nervous and he would wipe his brow with his

hands.

During redirect examination, the detective agreed that many

people are nervous during a police interview:

Q. Did you characterize Mr. Vega’s

demeanor when you spoke with him? He was

interviewed for an hour and a half about child

molestation to be unusual, the way to act

when being confronted by the police about

child molestation?

A. Not necessarily, no.
VEGA V. RYAN 27

Q. You would expect somebody to be

nervous right?

A. Yes.

Q. Especially being in the police department

and being confronted by allegations of child

molest, fidgeting and sweating and being

nervous and fidgeting, that’s not all that

uncommon, is it?

A. No.

Assuming arguendo that Lieutenant Neilsen’s testimony

was admissible, it had little probative value because “every

post-arrest silence is insolubly ambiguous because of what

the State is required to advise the person arrested.” Doyle v.

Ohio, 426 U.S. 610, 617 (1976). Indeed, given that the “SelfIncrimination Clause [is] applicable to state interrogations at

a police station,” Michigan v. Tucker, 417 U.S. 433, 443

(1974), it is feasible that Vega did not want to say anything

that could be used against him in court. Miranda v. Arizona,

384 U.S. 436, 469 (1966) (“The warning of the right to

remain silent must be accompanied by the explanation that

anything said can and will be used against the individual in

court.”).

Further, Vega’s nervousness was not particularly

indicative of guilt. After all, it is not unusual for a person to

be nervous when interacting with a police officer. Whren v.

United States, 517 U.S. 806, 817 (1996) (recognizing that

even traffic stops entail “‘a possibly unsettling show of

authority” and “may create substantial anxiety.’” (quoting

Delware v. Prouse, 440 U.S. 648, 657 (1979))); see also
28 VEGA V. RYAN

United States v. Chavez-Valenzuea, 268 F.3d 719, 726 (9th

Cir. 2001) (“Encounters with police officers are necessarily

stressful for law-abiders and criminals alike.”), amended by

United States v. Chavez-Valenzuela, 279 F.3d 1062 (9th Cir.

2002). And nervousness is especially likely in an

interrogation environment which “carries its own badge of

intimidation” because it is “created for no purpose other than

to subjugate the individual to the will of his examiner.” 

Miranda, 384 U.S. at 457.

In addition, the other evidence referred to by the Arizona

Superior Court corroborates B’s testimony but only in a most

superficial way—that on one occasion when B claims she

was molested, B was present in a room with Vega,

6

and that

on another occasion she appeared to be crying after Vega

tickled her.7 The details of what else may have

happened—aside from being present in the room with Vega

or being tickled by Vega—depend entirely on B’s own

testimony.

Both the state and the defense were well aware of the

Vega’s dysfunctional household. The state’s theory was that

Molly did not want to break up the family and pressured B to

recant her testimony. At the post-trial hearing, the state

argued that Father Dan’s testimony would further its theory

by demonstrating that Molly was willing to arrange for B to

6 Specifically, Emmanuel testified that he remembered a time in the new

house (the back house) when B kept going in and out of a room that Vega

was in.

7 Daniel Bracamonte, one of B’s brothers, testified that he recalled an

occasion when Petitioner told him to go to bed when B allowed to stay up. 

Daniel later heard tickling and laughing coming fromthe master bedroom,

where B and Vega were.
VEGA V. RYAN 29

see Father Dan and recant in order to save her marriage to

Vega. On the other hand, as the Arizona Superior Court

noted, “Mr. Darby’s clear strategy was the defense of actual

innocence, contending that B. fabricated the allegations in

order to remove Vega from the household in an effort to

resolve the family’s chaotic home environment.” Counsel

argued that “these are fabricated allegations of molest’” and

that “Vega and Molly Vega’s ‘very chaotic, topsy turvy

alcohol-fueled, drug-fueled relationship that these kids were

exposed to’ was a motivating factor in B.’s fabrications, as

‘every time [B.] would say that Pedro Vega molested her, he

would be taken out of the house.’” Counsel “elicit[ed]

testimony from B. that both Vega and her mother were using

and selling drugs, and that this made B. mad.”

We, of course, cannot resolve these difficult questions of

credibility. But it is apparent that Father Dan’s testimony

went squarely to the core issue in the case: Was B telling the

truth about Vega? And Father Dan’s testimony was not

merely cumulative of Molly’s testimony. It is true that the

jury heard Molly say that B had recanted her accusations, but

the jury never knew that one of her recantations was before

her local priest. Importantly, the recantation to Father Dan

was an occasion distinct from another recantation that B

made. Father Dan was not a witness to the conversation

between B and her mother. Rather, he testified at the

post-trial hearing that Molly brought B to him, and that he

spoke to her alone. The fact that a victim recants in front of

two people may make the testimony of one witness

cumulative to the testimony of the second witness. But when

the victim recants on two separate occasions to two different

people, it is harder to describe the testimony of the second

witness as merely cumulative of the first. In this case in

particular, where the family is so dysfunctional and family
30 VEGA V. RYAN

members have pitted themselves against other family

members, the testimony of Father Dan would have been of

much greater weight than the testimony of B’s mother, who,

according to the state, had reason to want her daughter to

recant. Father Dan had no such motive; he was not related to

the family and would have been in a better position to judge

B’s demeanor.

Perhaps more importantly, Arizona law, like many other

jurisdictions, has recognized the special relationship between

priests and their parishioners. See Ariz. Rev. Stat. § 13-

4062(3); Waters v. O’Connor, 103 P.3d 292, 295–97 (Ariz.

Ct. App. 2004) (explaining that the priest-penitent privilege

exists because of the “urgent need of people to confide in,

without fear of reprisal, those entrusted with the pressing task

of offering spiritual guidance” (quotation marks and citation

omitted)); see also Trammel v. United States, 445 U.S. 40, 51

(1980) (“The priest-penitent privilege recognizes the human

need to disclose to a spiritual counselor, in total and absolute

confidence, what are believed to be flawed acts or thoughts

and to receive priestly consolation and guidance in return.”). 

Father Dan testified that he did not hear B’s recantation in

confessional—neither he nor B has claimed-priest-penitent

privilege—and thus he was free and willing to testify as to

their conversation. Our point is not that the priest-penitent

relationship is involved here, only that a priest’s testimony,

because of the special relationship and confidence that

penitents have in their priests, may carry additional weight

with a jury. At the least, B’s conversation with Father Dan

would have carried much greater weight with the jury than

her recantation to her mother.
VEGA V. RYAN 31

In sum, Father Dan’s testimony “would have added an

entirely new dimension to the jury’s assessment” of the

victim’s testimony such that “there is a reasonable probability

that the [unpresented] evidence would have altered at least

one juror’s assessment [of the evidence].” United States v.

Kohring, 637 F.3d 895, 905–06 (9th Cir. 2010) (quotation

marks and citation omitted). Father Dan’s testimony would

have undermined the prosecution’s argument that the victim’s

mother had pressured her to recant in order to protect Vega

(her husband), because the victim independentlyrecanted—in

private—to a priest who had no reason to pressure her. And,

given the unique role that religious officials play in people’s

lives, the testimony of a priest who heard what he believed to

be a sincere recantation could have tipped the scales in

Vega’s favor.

Finally, there is an additional indicator of prejudice here

because the jury had a difficult time reaching a verdict.8See

Kotteakos v. United States, 328 U.S. 750, 764 (1946)

(discussing harmless error and explaining that “the appellate

court can[not] escape altogether taking account of the [trial]

outcome. To weigh the errors effect against the entire setting

of the record without relation to the verdict or judgment

would be almost to work in a vacuum.”); see also Stankewitz,

698 F.3d at 1175; Kennedy v. Lockyer, 379 F.3d 1041, 1056

n.18 (9th Cir. 2001). Indeed, the jurors could not reach a

unanimous verdict on three of the eight counts and the jury

found Vega guilty of a lesser-included offense on the third

8 The jury initially informed the court that it was deadlocked “with no

apparent change of agreement.” After receiving additional instructionsthe

jury convicted Vega on count one, a lesser-included offense on count

three, and counts five, six, and eight. The jury could not reach a verdict

on counts two, four, and seven.
32 VEGA V. RYAN

count. Given that at least one juror voted that Vega was not

guilty on three counts, “there is a reasonable probability that

at least one juror would have struck a different balance” on

the remaining five counts had he or she heard Father Dan’s

testimony. Wiggins, 539 U.S. at 537.

Accordingly, we conclude that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” 

Strickland, 466 U.S. at 689. We further conclude that the

state court’s findings that Father Dan’s testimony would have

been cumulative and would have had no effect on the verdict

is an unreasonable determination of the facts in light of the

evidence presented in the state court proceedings. 28 U.S.C.

§ 2254(d)(2). With all due respect for our state colleagues,

the state court’s application of Strickland was objectively

unreasonable because Vega’s counsel was ineffective when

he failed to review his client’s file and failed to interview and

then call Father Dan in his client’s defense. The Supreme

Court has held that such a failure to investigate exculpatory

evidence necessarily constitutes deficient performance even

when the client knew of the evidence, but never informed his

attorney. Rompilla, 545 U.S. at 383. Given that B’s

testimony was the cornerstone of the state’s case, that Father

Dan’s testimony would have undermined her credibility, and

that the jury struggled to reach the verdict, “there is a

reasonably probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694.
VEGA V. RYAN 33

III. CONCLUSION

The judgment of the district court is reversed. The case

is remanded with instructions to grant the writ of habeas

corpus.

REVERSED AND REMANDED.