F OR P UBLICATION

UNITED STATES COURT OF AP P EALS F OR THE NINTH CIRCUIT

P E D R O I M P E R I A L V E G A , Petitioner-Appellant

,

v

.

C H A R L E S L

. R Y

A N ; C A R S O N M C W I L L I A M S ,

Respondents-Appellees

. N o. 12-15631

D.C. No. 4:09-cv-00473- CKJ

ORDER AND OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Cindy K. J o r g enson, District J udg e, Presiding

Arg ued and Submitted September 12, 2013—San F rancisco, California

F iled May

19, 2014

B efore: Mary

M. Schroeder and J ay

S. B y bee, Circuit J udg es, and Ralph R. B eistline, Chief District J udg e. *

Per Curiam Opinion

* T h e Ho n o rab le Ralp h R. B eistlin e, Un i ted States District J u d g e f o r th e District o f

A lask a, sittin g b y

d esig n atio n

.V E G A V

. R Y A N 2

SUMMARY * *

Habeas Corpus

The panel w ithdrew an opinion filed November 13, 2013, and filed a new opinion reversing the district court’s d e nial o f

a 28 U.S.C. § 2254 habeas corpus p etition challeng ing the petitioner’s conviction of sex ually abusing his stepdaug hter.

The panel held that the state c ourt’s a pplication o f Strickland v. W

ashington was objectively unreasonab l e because trial counsel was ineffective when he failed to r eview the petitioner’s client file and failed to interview, a n d then call as a w itness, the priest to whom the victim had recanted her allega t i o n s of her stepfather’s sex ual abuse. The panel held that because counsel has a duty to investig ate even if his

or her client does not divulg e relevant information, reasonable jurists could n ot disag ree that tri a l counsel’s performance here was deficient.

Reg arding prejudic e , t h e panel held that there is a reasonable probability

that, but for c ounsel’s unprofessional
errors, the r esult o f the p roceeding would have been different. The panel concluded that the st a t e court’s f inding that the priest’s testimony would have b e e n cumulative and would ha v e h ad no effect on the verdict is an unreasonable d e t e rmination of the facts in lig h t of the evidence present e d in the state court proceeding s.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.V E G A V

. R Y A N 3

COUNSEL

Patricia A. Tay lor (arg

ued), L aw Office of Patricia A. Tay lor, Tucson, Ariz o na, for Petitioner-Appellant.

Thomas C. Horne, Attorney General, Kent Cattani, D ivision Chief Counsel, J oseph T. Maz iarz

, Section Chief Counsel, David A. Sullivan and Nicholas K l i n ge rman (arg ued), A ssistant Attorney s G eneral, T u c s o n , A r i z o n a , f o r Respondents-Appellees.

ORDER

The Opinion filed November 13, 2013, a nd appearing at 735 F .3d 1093, is withdrawn. I t may n o t be cited a s precedent by or to this c ourt o r any district court of the Ninth Circuit.

OP INION

PER CURI AM:

Petitioner Pedro I mperial Veg a was convicted of sex ually abusing his stepdaug h ter. I n this appeal of the district court’s denial o f his petition f

or a writ of habeas corpus, Veg a arg ues that h is trial counsel was constitutionally ineffective when he failed to review Veg a’s client file an d

, a s a r esult, failed to call as a w itness a Catholic priest to whom the v ictim h ad recanted her alleg ations of her stepfather’s sex ual abuse.V E G A V

. R Y A N 4

W e hold that reasonable jurists could not disag ree that counsel’s f

ailing deprived Veg a of his constitutional rig ht to effective counsel. A ccording ly

, the state court’s decision was

an u n reasonable application of S trickland v. W

ashi n gton , 466 U.S. 668 (1984). Th e d istrict c ourt erred by deny ing Veg a’s petition and we reverse.

I . B ACKGROUND

Pedro Veg a was c onvicted of contributing to t h e delinquency of a minor, molest a tion of a child, a nd three
counts of sex ual abuse of a c hi l d u n d er fifteen, based on incidents that occurred between 1995 and 1999. The victim

was Veg a’s stepda u g hter, B

. As detailed by the A riz o na Superior Court:

I n 1996, the v ictim (B .) orig inally raised molest alleg a tions, such whi c h formed the basis f or Counts 1–3. Those alleg ations were orig inally charg ed in the federal sy stem, then dismissed a fter Petitioner’s attorney (Denise Shepard) in that c ase learned that the victim had recanted su ch alleg ations, both to her mother, and a priest, F a ther Daniel P. McL aug hlin. Those cha r g e s were later reinstated in state court (CR-53329, in which P e t i t i o n e r w a s r e p r e s en t e d b y R a l p h E l l i n w o o d )

, b u t d i s m i s s e d a f t e r M r

. Ellinwood learned of the recantations. Counts 4–8 arose from alleg ations made by the victim in 2001. 1

1 A ll m i stak es in

o rig in al.V E G A V

. R Y A N 5

State charg es were broug ht for a thir d t i m e f ollowing a new set of allega t i o n s b y B
, a

nd the g rand jury indicted V eg a on three c ounts based on the first set of alleg ations (counts 1–3) and five c ounts based on the second set of alleg ations ( c ounts 4–8). Yet a third lawy er , D a v i d Darby

, represented Veg a at trial. After two mistrials, a jury found Veg a g uilty o f five o f the eig ht counts. 2 He was sentenced to twenty -eig ht y e ars in prison.

B o th V eg a and B testified at his trial, and the trial larg ely turned o n t heir testimony a nd the testimony of other family members. D uring the trial, B testified th a t s h e r ecanted the f i r st set of alleg a tions to her mother, but no evidence was introduced that she had also recanted to F at h er McL aug hlin (“F ather Dan”).

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

new trial or to vacate judg ment, on the g roun d s t h at he h ad just learned that the victim had recanted her a lleg ations to F ather Dan. The trial court held an evidentiary hearing where it heard testimony from several witnesses. F irst, F ather Dan testified—for the first time in the trial court— t h a t B’s mother, Molly Veg a, b roug h t B to hi s office, that he spoke with B a lone, that there was a “crisis in the family

, ” and that B told him “he [ V e ga ] didn’t do it.” He stated that because i t was n o t a “confessional matter,” he was “at liberty to tell [ the court] what the nature o f the conversation was.” Second, Veg a’s first two attorney s, D enice Shepherd and Ralph Ellinwood testified. Shepherd represented Veg a when he was charg ed with federal offenses that were later dismissed. She

2 T h e j u ry co n v icted Veg a on co u n t o n e, a lesser- in clu d ed o f fe ns e on

co u n t th ree, an d co u n t s f iv e, six

, an d eig h t. T h e j u ry co u ld n ot reach a

v erd ict o n

th e o th er co u n ts.V E G A V

. R Y A N 6

recalled that she first learned of B ’ s recantation to F a ther Dan from B ’ s mot h e r , M olly

. I n h er written notes from that conversation, she wrote do w n Father Dan’s contact information and u nderneath it wrote “ [B ] told him Dad didn’t do it.” She later spoke w ith F ather Dan and he confirmed that B h ad recanted. Attorney Ellinwood was a public defender who represented Veg a ag ainst the f irst set of state charg e s that w e re al s o dismissed. Ellinwood kept notes from two conversations he had reg arding F ather Dan. His notes, which

were in Veg a’s case file a n d are in the record b e f

o r e t his court, r eflect that h e met with Veg a, who told him that “[ B ] recanted to [ F ather Dan]

. ” He later met with Molly

, and his
notes reflect “F ather Dan – told h im Daddy never d id
any thing to her.” Third, J udg e Howard F ell, who w as the county attorney who prosecuted the second case, testified that he h a d no recollection of the case, b u t a u thenticated his hand-written n otes (which he surmised were notes of a phone conversation with Ellinwood), which r ead in p a rt: “ There is

no reasonab l e p robability o f success [ in obtaining a conviction.]

. . . There are recantations from t h e beg inning that the c hild still [ maintains] .” He c o n firmed that the charg es ag ainst Veg a were dismissed.

Veg a’s counsel in the third c a s e , Darby

, testified a nd advised the c o urt that he learned of the victim’s recantation
to F ather Dan f

rom B ’s a unt about a week to two weeks a fter
t h e verdict. He also admitted that it was possible that Ve ga had mentioned the matter to him, but that he h a d not seen Ellinwood’s hand-written notes about B’ s recantation to F ather Dan in hi s cl i e n t f ile. He later told the court that he “[ did not] re m e m ber reviewing a n y records of Mr. Ellinwood.” Counsel a cknowledg ed that if Veg a knew that B recanted to F ather D an and did not tell him, Veg a “d[ id] so at his own peril,” but urg e d the court to vacate the convictionV E G A V

. R Y A N 7

on due p rocess an d B r a dy 3 g rounds. Darby also acknowledg ed that if the court refused to g rant a new trial, he would have to a

rg ue that h e provided ineffective assistance to Veg a. F ollowing the hearing

, the trial court deni e d the motion for a new trial or to vacate because Veg a a nd his two prior counsel were aware o f B ’s recantation to F athe r D an, and thus F ather Dan’s statements we r e n o t “newly discovered” evidence under Ariz . R. Crim. P. 24.2(a)(2).

On direct appeal to the Ariz ona Court o f Appeals, V eg a arg ued that the trial court had erred b y deny ing h is motion for judgm en t o f a cquittal o r a new trial. The Ariz ona Court o f Appeals denied his appeal on the merits, ag re e i n g w ith the superior court that B ’s recantation to the priest was not “newly discovered evid en c e.” The court of appeals also
ag reed with the trial court that “ [a] t a minimum

. . . Veg a did
not ex e rcise due dilig ence” becau se “B .’s mother, Veg a’s sister and presumably Veg a himself all knew and told others about B

. ’s statements to the priest.” F inally

, t h e c ourt o f appeals concluded that the e v idence would not h av e b e en material because “the priest’s proffered testimony a bout B

. ’s
statements would merely h ave been cumulative to B. ’ s o wn testimony that she had recanted her a lleg ations to her mother and a counselor.” 4 The court concluded that there was not a “reasonable probability ” that the priest’s testimony would have chang ed the outcome o f the case. The Ariz ona Supreme Court summarily

denied review.

3 Bra d y v. Ma ryla n d , 7 3 U.S. 8 3 (1 9 6 3 ).

4 T h e co u rt o f ap p eals ag reed w ith th e trial co u rt th at th ere w as n o

ev id en ce th e state k

n ew o f B ’ s recan tatio n to Fath er Dan
, an d th u s th ere

w as n o Bra d

y v io latio n

.V E G A V

. R Y A N 8

Veg a then soug ht stat e post-conviction relief on the
g rounds of ineffective assistance of counsel. The Ariz o na Superior Court held a two-day evidentiary hearing in 20 08, and issued a detailed minute order. Reciting the standard for ineffective a ssistance of coun sel under Strickland

, the court refused to find

i n effective assistance in that [ counsel] failed
t o i nvestig ate the victim’s recantation to “F ather Dan.” This Court, at trial, determined that Petitioner himself was a w are of the recantation.

. . . Th e Court declines to find post-conviction relief appropriate on thi s g round, g iven that a defendant is responsi ble f o r assisting counsel with his defense. I t i s illog ical and unreasonable to h o l d [ counsel] responsible for Peti tioner’s failure to divulg e such information to him. Clearly

, couns e l’s performance did not fal l b e low the standard, and Petitioner c annot have b een prejudiced, a s he was aware of the recantation a nd himself, failed to reveal it to counsel.

The court concluded:

The requirements of S

trickland ar e clear: Petitioner must demonstrate both that counsel’s efforts fell below t he standard prevail i n g in the c ommunity

, and that these failing s prejudiced him. The Court finds that Petitioner has failed [ to] d emonstrate that counsel’s efforts fell below the prevailing profe s s ional n orms. The Court further finds that, even assuming arguendo that counsel’sV E G A V

. R Y A N 9

efforts fell below st a n d ards, Petitioner has failed to prove prejud i c e as a result of those actions. The evidence a g a inst Petitioner included, but b y no means w as limited to: B

. ’s testimony ; the fact that Petitioner failed to deny the molests to both B. ’ s mother and the police; a n d that B .’s brothers each provided facts that provided c o r roboration as to elements of her testimony

. (footnote omitted). T he Ariz o na Court of Appeals g ranted review, but “[ s] eeing no reason to repeat the trial court’s analy sis h ere,” it adopted the trial court’s decision and denied relief. The Ariz ona Supreme Court ag ain summarily denied review.

Having ex hausted h is state remed i e s, Veg a initiated the instant federal habeas proceeding s, seeking relief pursuant to 28 U.S.C. § 2254. I n a report and recommendation, the
mag istrate judg e recommended deny ing the petition on the merits. The district court ag r eed with the mag istrate judg e’s report, noting specifically that “[ i] n lig ht of the victim’s testimony [ that she had recanted]

, the additional instances o f recantations w ould have been ‘larg ely cumul ative in their basic e ffect.’” The district court then concluded that “[ g ] iven
t h e reasons the Ariz ona courts stated f or not g ranting relief, this Co u r t does not find that the state courts’ decision involved an unreasonable a pplication of federal law.” However, the dist rict court g ranted a certificate o fV E G A V

. R Y A N 10

appealability for V eg a’s ineffective assistance of counse l claim. Veg a timely

appealed. 5

I I . DI SCUSSI ON

A. The AEDPA Standard

This case is g overned b y the Antiterrorism and Effective Death Penalty Act of 1996 ( A E D P A). Under AEDPA, habeas relief can be g ranted only if t h e state court’s proceeding s “resulted in a d e ci sion that was contrary to, o r involved an unreasonab l e application of, clearly e stablished Fe d e ral law as determined by the Supreme Court of the United States” or resulted in a decision that was “based on an unreasonable determina t i o n of the facts in lig h t of the evidence presented in the State court proceeding .” 28 U .S.C. § 2254(d)(1), (2).

A decision involves an “unreasonable application” o f clearly established federal law under § 22 5 4(d)(1) if it “identifies the c orrect g overning leg al principle

. . . but

un reasonably applies that principle to the facts of the
p risoner’s case.” W

illiams v. Taylor

, 529 U.S. 3 62
, 4 1 3 (2000). Thus, “[ t] he pivot a l q u e stion is whether the state

c o urt’s application” of the Supreme Court precedent “was unreasonable[ ,] ” Harr ington v. Richter

, 131 S. Ct. 770, 785 (2011), a s opposed to merely “incorrect or erroneous[ ,] ” Lockyer v. Andrade

, 5 38 U.S. 63, 7 5 (2003). I n apply ing this standard, we must g ive “state-court decisions .

. . the benefit of the doubt,” W

oodford v. Visciotti , 537 U.S. 19, 24 (2002)

5 V e ga arg u es th at co u n sel f ailed in o th er resp ects. B ecau se w e fi n d

co u n sel’ s f

ailu re to call Fath er Dan disp o s itiv e, w e d o n ot ad d ress Veg a’ s

o th er claim s o f

erro r.V E G A V

. R Y A N 11

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

as fairminded jurists could disag r ee on the correctness of the
state court’s decisio n

. ” R i chter

, 1 31 S. Ct. at 786 (internal quotation marks and citation omitted).

Under § 2 254(d)(2), the “u nreasonable determination”

c lause, “a state-court’s factual determination is no t unreasonable merely because the federal habeas court would have reached a d i f

ferent conclusion in the first instance.” Burt v. Titlow

, 134 S. Ct. 10, 1 5 (2013) (internal quotation marks and citation o mitted). I nstead, we presu m e t hat the
state court’s factual finding s are correct unless the p etitioner rebuts the presumption of correctness by clear and convincing evidence. Rice v

. C ollins

, 546 U.S. 333, 338–39 (2006) (citing 28 U.S.C. § 2254(e)(1)).

B

. Ineffective Assistance of Counsel

T h e “clearly established federal law” for ineffective assistance of counsel claims is articulated in Strickland

. See W illiams

, 529 U.S. at 390. “Surmount i n g Strickland ’s hig h bar is never an easy task.” P a dilla v. Kentucky

, 559 U.S. 356, 371 (2010). To succeed on a Strick l a n d claim, a defendant
must prove that (1) his cou n s el’s performance was deficient and (2) he was p rejudiced b y counsel’s de fi cient 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 outsid e “ t h e rang e o f competence demanded o f attorney s in criminal cases.” Id. ( internal qu o t at i o n marks and citation omitted). W h e n evaluating counsel’s conduct, “w e must make every effort ‘to eliminate the d istorting effects of hindsig ht,

. . . and t o e v a l u ate the conduct fromV E G A V

. R Y A N 12

c o u nsel’s p erspective 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 b y counsel’s deficient performance if “there is a reasonable probability that, but for counsel’s unprof

e s s i onal 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 c onfidence in the outcome” of a p rocee d i ng

. Id. Thus, a petitioner need not prove “counsel’s actions more likely than n ot al t er e d the outcome,” but rather he must demonstrate that “[ t] he likelihood o f a d ifferent result [ is] substantial, not just conceivable.” Richter

, 131 S. Ct. at 791–92 (internal quotation marks and citation omitted).

B e cause we are reviewing the Ariz o na courts’ a ssessment of counsel ’ s performance u nder A EDPA, our review is necessarily “doubly deferential,” Knowl es v. M irzayance
, 5 5 6 U.S. 111, 123(2009): Subject to the c onstraints of Strickl a nd

, the Ariz ona courts must defer to counsel’s judg ments, and, subject to A E D PA’s standards, we must def e r to the Ariz ona courts’ assessment of counsel’s judg ment. W e recog n iz e that our state-court colleag ues have the same duty we have to adjudicate claims of constitutional
wrong , and, subject to AEDPA, w e will respect their judg men t s

. B u rt , 134 S. Ct. at 15–16; see also Stone v

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

W e apply the dou b l y deferential standard to review the
state court’s “last reasoned decision.” Cheney v. W a shington

, 614 F .3d 987
, 9 9 5 (9th Cir. 2 010). Here, the A riz o na Superior Court’s decision deny ing Veg a’s petition for post-conviction relief is the last reasoned d e cision becauseV E G A V

. R Y A N 13

the Ariz o na Court of Appeal’s adopted the Superior Court’s reasoning a nd the Ariz ona Supreme Court summarily affirmed.

1. Deficient representation

I n this case, the Ariz ona Superior Court p rop erly
recog niz ed the authority of S trickland and correctly cited its
two p ro n gs

. A pply ing S trickland

, it determined that “counsel’s performance did n ot fall below the standa r d ” because “ a defendant is responsible for assisting counsel with his defense” and “[ i] t i s i llog ical and u nreasonable to hold [ counsel] responsible for Petitioner’s failure to divul g e [B ’s recantation to F ather Dan] to him.” With all due respect, we hold that the state court’s conclusion in this reg ard is an unreasonable application of “ clearly established F ederal law,

as determined by the Supreme Court o f the United States.” 28 U.S.C. § 2254(d)(1).

F irst, the state court’s holding that counsel had no responsibility to obtain information known to h is client is an unreasonable a

pplication o f Supreme Court preced en t

. I n Rompilla v. Beard

, the Supreme Court stated, in an AEDPA
case, that counsel was i neffective in failing to ex amine the defendant’s prior-conviction file f or mitig ating evidence. 545 U.S. 374, 387–89 (2005). There, couns e l f ai led to present substantial mitig ation evidence during the penalty phase of a capital murder case even thoug h the e vidence was documented in t h e “readily available” file on Rompilla’s prior conviction. Id. at 383–85. The Court found this point “clear and dispositive: the lawy ers were d eficient in failing to

ex a mine the court file on Rompilla’s prior conviction.” Id. at 383. The Court observed that “Rompilla’s own contributions
to any mitig ation case were minimal,” “[ t] here were t i mesV E G A V

. R Y A N 14

when Rompilla was even active l y obstructive by sending counsel off on false leads,” and Rompilla’s family members

were n ot h elpful. I

d. at 381. Despite the difficulties counsel had with their client, the C o u r t held that “[ n] o reasonable lawy er would forg o ex amination of the file thinking he could do as well by a sking the defendant or family relations [ about potential mitig ating evidence]

. ” Id. at 389. B ecause o f counsel’s defici ency , the Court held that the “state courts

were objectively unreasonable in c oncluding that counsel could reasonably decline to m ake a ny effort to review the file.” Id. at 390.

R o mp i lla is dispositive here. The records Rompilla’s counsel failed to invest i g ate included Rompilla’s school records, prior conv i ction records, a nd mental health reports—all matters that Rompilla himself w ould have h ad

some k nowledg e of and could have assisted c o u nsel in determining whether such documents would h a ve produced probative mitig ation evidence. The Court m a de clear in Rompilla that counsel had a duty —independent of whatever knowledg e his c lient may have—to make reasonable investig ation including

, at a minimum, reviewing “ the court file” on Rompilla’s prior c o n v i c t ion. I f Rompilla’s counsel had a duty to review the court fil e i n a p r ior c ase , it is minimally incumbent on Veg a’s counsel to review the f ile o f the previous a ttorney s who handl ed the charg es in the same

case

.

W e think it apparent from R o mpilla that the client’s o wn knowledg e of what is in his file is irrelevant to the discharg e of h is counsel’s duty

. W e applied this p rinciple in Stankewitz

v. W ong , 6 98 F .3d 1 163 (9th Cir. 2012), a pre-AEDPA c ase. Stankewitz ’s conviction following his first trial was reversed

o n appeal because of a conflict with counsel. Id. at 11 6 5

.V E G A V

. R Y A N 15

Prior to his second trial, new counsel was appointed, and the second counsel failed to present mitig ating evidenc e. Id. at 1166. “[ D] espite [ hi s ] possession of [prior counsel’s] files, he did not investig ate any o f the evidence contained within
t h e m

. He d id not c ontact [ prior counsel] to discuss t h e contents of the files.” Id. a t 1171. Rely ing on Rompilla a nd W iggins v. Smith

, 539 U.S. 510 (2003), we had little d ifficulty finding ineffective assistance of counsel “because, d e spite the fa c t t h at t he evidence ‘was in [ h is] hands,’ he ‘failed to do
any further investig ation or d ev elopment of this critical mitig ation evidence.’” Id. at 1172 ( alteration in orig inal) (quoting S

ummerlin v. Schriro

, 427 F

. 3 d 623, 6 3 2 ( 9th Cir. 2005) (en banc)).

Here, it is undispu t e d that Veg a’s first two attorney s documented F ather Dan’s ex c u lpatory testimony in Veg a’s file, which h is trial c o unsel ne g lected to read. As in Rompilla

, the fact that Veg a did not take it upon hi m s elf to inform his counsel about F ather Dan did not ex cuse counsel from conducting a rudimentary invest i gation. After Rompilla

, talking with a client is not a n a d e q u ate substitute for reading

the client’s case file.

Second, b ut relatedly

, it is also clearly established federal law that counsel is defic ient if he or she p ossesses

ex c u lpatory evidence but has no stra t e gi c reason for withholding it. I n W

iggins
, counsel for the g uilt-phase of a death penalty trial informed jurors “‘[ y ] ou’re g oing to hear that Kevin W ig g ins has had a difficult life’ but ‘[ d] uring the proceeding s themselves, [ ] counsel introduced n o evidence of W ig g ins’ life history .’” 53 9 U .S. at 515. There, counsel

were aware of appellan t ’ s backg round, including W ig g ins’ terrible childhood, and t h e y k n ew “[ t] h ey had available to them both the presentence investig a tion r eport [ ] prepared b yV E G A V

. R Y A N 16

the D ivision of P a role and Probation,

. . . as w ell as ‘more detailed social service records th at recorded incidences o f
p h y sical and sex ual abuse, an alcoholic mother, placeme n t s in foster ca r e , a n d borderline retardation.’” 539 U.S. at 518 (internal citation and quotation marks o m i t t e d )

. N e v e rtheless, counsel decided n ot to present any o f the powerful mitig ating evidence. Apply i n g Strickland

, the Court decided that counsel’s conduct constitut e d a Six th Amendment violation because “a c ompetent a ttorney , aware o f [ W ig g ins’s] history

, w o uld have introduced it at sentencing in an admissi b l e form.” Id. at 535.

Here, Veg a’s previous two attorney s documented

ex c u lpatory evidence in V eg a’s client file. F or ex ample, Shepherd w rote that the vic t i m t o l d F ather Dan that “Dad didn’t d o it” and that B told her mother she needed “ t o g et this off my chest.” Similarly

, Ellinwood wrote “ Father Dan

— [ B ] recanted to h im. ” Yet a third note included information about the victim’s question, “Mom what if I was ly ing what w o u ld they do? ” and “F ather Dan — told him D a d d y never did any

thing to her.” Veg a’s trial c oun s el admitted, however, that he did not remember the contents o f Shepherd’s notes and did not remem b e r reviewing Ellinwood’s notes. On the motion for a new trial, the County
arg ued that B ’s r ec a n t a t ion to F ather Dan was not newly discovered evidence, b u t rather that “[ t] here [ was] no d ue dilig ence done in finding out this information b y cu rrent counsel,” and that trial counsel “was ineffecti v e for not finding out this information.” And Darby admitted that, if the
court ref u s ed h i s r equest for a new trial on the g rounds o f newly discovered e v idence, he would be forced to c onfess his

own ineffective assistance

. So, like counsel in Rompilla

, Veg a’s counsel was deficient because he failed to read Veg a’s c ase file even thoug h the c ase’s procedural h istory putV E G A V

. R Y A N 17

counsel on notice th a t t he federal g overnment and A riz o na had previously dismissed the charge s ag ainst his c lient a nd the arguably

ex culpatory

evidence was “at his fing e rtips.”

W h ile Strickland protects “ s trateg ic choices made a fter thoroug h investig ation of law and f acts,” 466 U.S. at 690, h ad Darby k n own of B ’s recantation to F ather Dan, there was no strateg ic reason for not c alling F ather Dan as a witness. He

was available t o t e s t i fy 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 h im. I mportantly

, F ather D an was not a member of the family and had no reason to misrepresent B’ s r e cantation. He thus w ould have broug ht credibility to B ’s mother’s claims that B had recanted to her.

W e recently applied Strickland in an A EDPA ca s e in which there was also a failure to investig ate ev i d e n ce of a recantation. I n Cannedy v. Adams

, 706 F. 3 d 1 1 48 (9th Cir. 2013), Cannedy was conv icted of committing lewd a nd lascivious acts on his stepdaug hter. I d

. a t 1151. Cannedy alleg ed that his counsel was ineffec t i v e b ecause he ig nored evidence that the v ictim had r ecanted her alleg ations in an internet posting to a friend. Id. a t 1161. As in this c ase, Cannedy ’s “trial wa s l a rg e ly a ‘he said, she said’ case, with

no phy sical evidence linking [ Cannedy ] to the alleg e d abuse.” Id. Cannedy was the sole witness in his defense, and h is only defense was that the victim had fabricated the alleg ations. Id. Th e i n ternet posting w ould have ex p lained the victim’s motive to implicate Cannedy f alsely

. Id. Under these circumstances, “[ n] o competent lawy er w ould have declined
to int er view such a p otentially favorable witness w hen that wit n e s s had been clearly identified, the witness w as easily accessible and willing to p r o v ide information, a nd trial counsel faced a dearth of defense witnesses.” Id.V E G A V

. R Y A N 18

W e 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 k ey w itness to the jury

. Strickland and Rompilla tell us that a reasonab l e lawy er would n ot have committed such a lapse. Even view ing the f acts a s a defense lawy er would have done at the time we c an conceive of no circumstances where the d ecision n ot to read a client’s file—a file prepared to answer the same charg es—would be reasonable. F urthermore, th e re ca n be no sug g estion that counsel made a strateg ic d ecision not to intervi e w or c all F ather D an because counsel did n ot even know a b o u t t he vict i m ’ s r e cantation to F ather Dan until a o ne or two weeks after the trial. See T

h o m a s v. Chappell

, 678 F .3d 1086, 1104–05 (9th Cir. 2012) (finding Strickland error when trial counsel’s failure to c a l l a witness could not be ex cused as a tactical decision because counsel d i d not have sufficient information to make an informed decision).

I n lig ht of the uncontroverted evidence before the A riz o na Superior Court and the Ariz ona Court o f Appeals, the state court’s holding that Veg a’s c o u nsel rendered effective assistance of counsel is an unreasonable application of clearly established f

e deral law, namely Strickland and Romp i l la

. B ecause counsel has a duty to investig ate, even if his o r her client does not divulg e relevant i nformation, w e hold that reasonable jurists could n ot dis a gree that trial counsel’s performance here was deficient.

2. Prejudice

As we have p r eviously o bserved, to prevail on his ineffective assistance claim, Veg a must demonstrate prejudice as well as deficient performance. Strickland

, 466 U.S. at 687–88. Ordinarily

, to demonstrate prejudice, theV E G A V

. R Y A N 19

petitioner must show “it is reasonably likely the r esult would have b een different” b u t f or c ounsel’s ineptitude. Richter

, 131 S. Ct. at 792 (internal quotation marks and citation omitted). A nd “[ t] he likelihood of a different result must be sub s t a n t i al, not just conceivable.” Id. ; see also Strickland

, 466 U.S. at 6 94 (holding that petitioner must prove there is “a reasonable probability that, but for c ounsel’s unprofessional
errors, the result of the proceeding would hav e b e e n different.”).

“Under AEDPA, we do not apply the Strickland standard de novo.” G ulbrandson

, 7 38 F .3d a t 98 8

. I n s tead o f considering whether p e titioner met the burden o f proving prejudice, we must decide “whether the state post-conviction
court was reasonable in d etermining that [ the petitioner] was

no t p rejudiced.” Id. at 990. I n assessing whether Veg a was prejudiced by counsel’s c onduct “ we must c o m p a re the evidence that actually was presented to the jury with that whic h co u ld have been p resented had counsel acted appropriately

. ” Cannedy

, 7 06 F

. 3d at 1 163 (quotation marks and citation omitted); see also W illiams

, 529 U.S. at 397–98.

The Superior Court decided that Veg a was not p rejudiced by counsel’s performance because counsel rendered effective assistance. Nevertheless, assuming arg uendo that counsel’s perf o r m ance was deficient, the Superior Court found that additional recantation evidence would have been c umulative because “the jury heard [ the victim] testify that she recanted
to her mother.” Thus, the Su p erior Court concluded, there

was no prejudice b ecause there was sufficient evidence
ag ainst V eg a, inclu d i n g the v ictim’s testimony

, which o f itself was “enoug h to sustain a conviction for chi l d molestation” under State v. Munoz
, 56 1 P .2d 1238, 1241V E G A V

. R Y A N 20

(Ariz

. 1 9 76), and the testimony of other witnesses that corroborated B ’s testimony

.

The fact that a c h ild victim’s testimony is suffic i e n t evidence to sustain a c on v iction for child molestation does
not mean t h a t V eg a was not prejudiced by his counsel’s sho r t c oming s. F or that p recise reason, when the child’s testimony g oes to the heart of the sta t e’ s c ase, evidence that the victim has recanted her alleg ations to a responsible adult is critical to the defense. And when that evidence is not cumulative of other testimony

, the d efendant has been deprived of a key

witness and has suffered prejudice.

The Ariz o n a Court of Appeals found that “the victim’s credibility

was a central issue.” I

ndeed, here as in Cannedy

, “Petitioner’s trial w as larg ely a ‘he said, she said’ case, with

no phy sical e vidence linking Petitioner to the alleg e d abuse.” 706 F .3d at 1161. F urther, like many sex ual abuse cases, the victim’s credibility was essential both to the prosecution and
to the d efense. Veg a’s entire theory i n d e f e nse was that B had fabricated her alleg ations ag ains t him. B ’s credibility

was also a key issue because there was evide n ce that undermined both the victim’s and Veg a’s testimony

. On the

one hand, the victim admitted that she recanted the first set o f alleg ations. B ut, on the other hand, the victim’s mother and brothers corroborated o ther aspects of her testimony

. Here is the summary of the evidence from the Ariz ona Superior Court’s opinion deny ing post-conviction relief:

T h e requirements of Strickland are clear: Petitioner must demonstrate both that counsel’s efforts fell below the standa r d prevailing in the community

, and that t hese failing s prejudiced him. The fi n d s thatV E G A V

. R Y A N 21

Petitioner h a s failed [ to] d emonstrate that counsel’s efforts fell below the prevailing professional norms. The Court f u rther finds that, even assuming arguendo that counsel’s

e f forts fell below standards, Petitioner h a s failed to prove prejud i c e as a result of those actions. The evidence a g ainst Pet i tioner included, but by no means was limited to: B ’ .s testimo ny ; the fact that Petitioner failed to deny the molests to B oth B .’s mother and the police; and that B

. ’s b r oth e r s each provided facts that pr o v ided corroboration as to

e l e ments of her testimony

. 4

. . . According ly

, g iven the evidence, the Court finds that Petitio n er was not rendered ineffective assistance of counsel at trial.

______________

4 B. ’s oldest brother, E mmanuel Ramirez

, testified that he had e avesdroppe d on their mother speaking with Petitioner o n the phone after the alleg ations were made, and that Petitioner answered M olly Veg a’s question “Did y ou do it? ” w ith “Yes.” Emmanuel w ent

on to s a y that Molly Veg as then “went craz y and she go t rid of any

thing like pictures a

nd

we dding

, like every

thing 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 g oing in

a n d out of a room in which Pete was, which story corroborated B .’s testimony as t o the
events surrounding one of the mo l e sts. B

. ’sV E G A V

. R Y A N 22

brother Dani e l B racamonte testified that he recalled an o ccasion w hen Petitioner told him
to g o to bed when B

. W as a llowed to stay up. Daniel later h eard tic k l i ng and laug hing coming from the m aster bedroom, where B

. and Petitioner were. L a t e r tha[ t] nig ht, as B

. Came in t o the room in w hich the two were sleeping he saw her w iping her ey es, a s t h o ug h she was cry

ing

. This story closely corroborates B .’s testimony that Veg a molested her while tickling her.

(references to trial transcripts omit t ed; footnote in orig inal). B ut this evidence, standing by itself, was likely not sufficient
to convict Veg a without B ’s testimony

. No one, ex cept for B
, could testify

to the acts of which she accused Veg a

.

The strong est corroborating evidence r e f erred to by the Superior Court was testimony from E mmanuel Ramirez

, B ’s older brother, that he had p icked u p a p h o n e a

nd overheard his mother, Molly

, ask Veg a “ did y ou do i t ” and that V eg a answered “y e s.” B ut Emmanuel’s testimony was subject to vig orous cross-ex amination:

Q. B efore y ou heard y our mother ask [ Veg a] if he did it, a

n d before y ou heard that a nswer, y ou don’t know w hat y our mother and [ Veg a] were talking

about, do y o u?

A. No.

Q. You h ave no idea what they were talking about at the time, did y ou?V E G A V

. R Y A N 23

A. No.

Moreover, defense counsel e licited that Emmanuel, who was 18 at the time he testified a n d 14 or 15 at the time of the phone c all, had been d ealing cocaine since he was 14 and was using drug s on a daily b a s i s during that period. He remembered little of the i n c i d e nt ex cept for his mother’s question and Veg a’s answer:

Q. Now, y ou don’t remember a ny dates about when any of these thing s that y o u talked about happened, correct?

A. Correct.

Q. I s it because of a bad memory beca u s e o f drug use back then?

A. No, I can’t remember none of my childhood.

Q. None at all?

A. Nothing

.
Q. W h at’s the last thing y ou remember about
y our childhood?

A. Nothing

.
Q. J ust kind of all a blank to y ou?

A. I remember a little bit but nothing – I just can’t really

remember any

thing

.V E G A V

. R Y A N 24

The evidence “that Petitioner f ailed to d e n y the molests
to both B .’s mother and the police

, ” has minimal probative value because silence is inherently ambig uous. See Uni t ed States v. Ha l e , 4 2 2 U.S. 171, 1 76 (1975) (“I n most circumstances silence is so ambig uous that it is of l ittle probative force.”). W hen Molly confronted Veg a about the alleg ations, he neither admitted nor denied molesting B :

Q. W ell, he told y o u he didn’t molest [ B ]

.

A. No, he didn’t say that[ .] He allowed me to hit him on the face[ .] I just h it him on the face and he wouldn’t l o o k [ .] He w ouldn’t turn to see me, to look at me

Q. So y ou were beating

on him?

A. I was hitting him in the face[ .] He bro k e my heart.

Q

. W h at were y o u say ing to him when y o u were beating

on him?

A

. I was say ing like, “How could y ou,” thing s like that.

Q. And h e denied it[

. ] H e said, “I didn’t do
any thing ? ”

A

. I t o ld him to leave. He couldn’t say any thing

. Althoug h “[ s] ilence g ains m o r e p robative w eig ht where it persists in the f

ace of accusation,” under these circumstancesV E G A V

. R Y A N 25

it is questionable whether the “ confrontation naturally called for a reply ,” id. , g iven that Veg a “couldn’t say any thing .”

Similarly

, Veg a’s resp o nse, or lack there of, to police officer questioning was f

limsy evidence. L ieutenant Neilsen informed Veg a of his Miranda rig hts and interviewed V eg a after he was arrest e d on F ebruary 6, 1996. The state asked L ieutenant Neilsen about Veg a’s d e meanor during the interview:

Q. Can y ou describe for us his facial

ex p ression or what he did when y ou said y ou were investig ating child molestation?

. . . .

A. I did not see any emotion at all.

Q. Did he, a fter y ou told him y ou were investig ating alleg ations of child molestation, did he deny

eng ag ing in child molestation?

A. No.

Q. Did he ever throug hout the course of y our discussion with him ever deny the alleg ations that were being

made?

A. No.

Q. Did he admit them?

A. No.V E G A V

. R Y A N 26

Q. W hat would he do?

A. He would ex plain them.

Detective Dollar interviewed Veg a, who voluntarily met officers a t the sheriff’s station, around April 28, 2000 a fter B made additional alleg ation s. Once ag ain, the state asked about Veg a’s demeanor:

Q. W hen y ou tal k ed to the defendant, Peter V ega , describe to us his d emeanor. W hat he

was looking l i ke or doing when y ou were talking to them.

A. Mr. Vega was f

idg eting

, play ing with his hands, his t h u mbs. He would look down fre quently while [ the detective] was asking questions of h im. He seemed to be somewhat

nervous and h e would wipe h is brow with his hands.

During redirect ex amination, the detective ag reed that many people are nervous during a police interview:

Q. Did y o u characteri z e M r. Veg a’s demeanor when y ou spoke with him? He was interviewed for an h our and a half about child molestation to be unusual, the w ay to act when b eing c onfronted by the police about child molestation?

A. Not necessarily , no.V E G A V

. R Y A N 27

Q. You would ex pect somebo d y t o be nervous rig h t?

A. Yes.

Q. Especially

being in the police department and bei n g c onfronted by alleg ations of child

mo lest, fidg eting and sweating and being

n e rvous and fidg eting

, that’s not all that uncommon, is it?

A. No.

Assuming arg uendo that L ieutenant Neilsen’s testimony

was adm i s s i b le, it had little probative value because “every post-arrest silence is insolubly ambig uous b e cause of what the State is required to advise the person arrested.” Doyle v

. Ohio

, 426 U .S. 610, 617 ( 1976). I ndeed, g iven that the “SelfI ncrimination Clause [ is] a pplicable to state interrog ations at

a police station,” Michigan v. Tucker

, 417 U.S. 433, 443 (1974), it is feasible that Veg a did n ot w a n t to say a ny thing that could be used ag ainst him in court. Miranda v

. Arizona
, 384 U .S. 436, 469 ( 19 6 6) (“The warning of the rig ht to remain silent must be accompanied by the ex p l a n at ion that
any thing said can and will b e used ag ainst the individual in court.”).

F u r t her, Veg a’s nervousness was not p a rticularly indicative of g uilt. After all, it is not u nusual for a person to be nervous when interacting with a police officer. W hren v

. United States
, 517 U.S. 806, 817 (1996) (recog niz i n g that

even traffic stops entail “‘a possibly unsettling s how o f authority ” a

nd “may creat e s ubstantial anx iety .’” (quoting Delware v

. Prouse
, 440 U.S. 6 48, 657 (1979))); see alsoV E G A V

. R Y A N 28

United States v. Cha v e

z -Valenzuea

, 268 F .3d 719, 726 (9th Cir. 2001) (“ E n counters with police officers are necessarily stressf u l f o r law-abiders and criminals a like.”), amended by United States v. Chavez-Valenzuela

, 2 7 9 F .3d 1062 (9th Cir. 2002). And nervousness is e s p e cially likely in an interrog ation environment w hich “carries its own badg e o f intimidation” because it is “created for no purpose other than
to subjug ate the individual to the w ill of his ex a miner.” Miranda , 384 U.S. at 457.

I n addition, the other evidence referred to by the A riz o na Superior Court corroborates B ’ s testimony but only in a most super f icial way —that on o ne occasion when B claims she was molested, B was present in a room with Veg a , 6 and that

on another occasion she app e a r ed to be cry ing after V eg a tickled her. 7 The details of what else m a y have happened—aside from being presen t i n the room with V eg a

or being t i ckled b y Veg a—depend entirely on B ’s o wn testimony

.

B o th the state and t h e defense were well aware of the Veg a’s dy sfunctional household. T h e state’s theory was that Molly d id n ot w ant to b reak u p the family and pressured B to recant her testimony

. At t h e p o st-trial hearing

, the state arg ued that F ather D an’s t e stimony would further its theory by demonstrating that M o l l y was willing to arrang e f or B to

6 S p ecif i cally

, Em

m an u el testif

ied t h at h e rem em

b ered a tim e in th e n ew h o u se (th e b ack h o u se) w h en B k ep t g oin g in an d o u t o f a ro o m th at Veg a

w as in

.

7 Dan iel B racam o n te, o n e o f B ’ s b ro th ers, t estif ied th at h e recalled an

o ccasio n w

h en P etitio n er t o ld h i m to g o to b ed w h en B allo w ed to stay u

p

. Dan iel later h eard tick lin g an d lau g h in g co m in g f ro m th e m aster b ed ro o m , w h ere B an d Veg a w ere.V E G A V

. R Y A N 29

s ee F a ther D an and recant in order to save her marriag e t o Veg a. On th e o t h e r hand, as the A riz ona Superior Court noted, “ M r. Darby ’s clear strateg y was the defense of actual innocence, contending that B. f a b ricated the alleg ations in order to remove Veg a from t h e h o usehold in an effort to

r e solve the f

amily ’s chaotic home environment.” Counsel
arg ued that “the se are fabricated alleg ations of molest’” a nd that “Veg a and Molly Vega ’ s ‘very c haotic, topsy turvy alcohol-fueled, drug

- f

ueled relationship that these kids were

ex p osed to’ was a motivating fac t o r i n B .’s fabrications, a s ‘every time [ B .] would say that Pedro V eg a molested her, he would b e t a k en out of the house.’” Counsel “elicit[ ed] testimony f

r om B

. that both Veg a and h er mother were using and selling drug s, and that this made B

. mad.”

W e , of c ourse, cannot resolve these difficult questions o f

c r e d i bility

. B ut it is apparent that F ather Dan’s testim o n y went squarely to the core issue in the case: W as B telling the
t r u t h a b out Veg a? And F ather D an’s testimony was not merely cumulative of Molly ’s testimony

. I t i s true that the jury heard Molly say that B had recanted her accusations, but the jury never knew that one of h e r r e c a ntations was before her local priest. I mporta n t l y , the recantation to F ather Dan

w as an o ccasion distinct from another recantation that B made. F ather Dan was not a witness to the conversation between B and her mother. Rather, he test i fied at the post-trial hearing t h a t Molly broug ht B to him, and that he spoke to her alone. The fact that a victim recants in front of
two people may make t h e t e stimony of one witness cumulative to the testimony of the second witness. B ut when the victim recants on two separate occasions to two different people, it is harder to describe the testi m o n y of the second

w i t ness as merely cumulative of the first. I n this case in
p a r t icular, where the family is so dy sfunctional and f am i l yV E G A V

. R Y A N 30

members have pitted themselves ag ainst other f amily members, the t e stimony of F ather Dan would have been o f much g reater w eig ht than the testimony of B ’s mother, who, according to the state, had reason to want her daug h te r to recant. F ather Dan had no such motive; h e was not r elated to the family and would have been in a better position to judg e B ’s demeanor.

Perhaps more importantly , Ariz ona law, like many other jurisdictions, has recog n iz ed the special r elationship b etween priests a n d t h eir parishioners. See Ariz

. Rev. Stat. § 13- 4062(3); W

aters v. O ’ Connor
, 103 P.3d 292, 295–97 (Ariz

. Ct. App. 2004) (ex plaining that the p riest-penitent privileg e

e x i s ts because of the “urg ent need of people to confide i n , without fear of reprisal, those entrusted w ith the pressing task of offering spiritual g uidance” (quotation marks and citation omitted)); see also Trammel v. United States
, 445 U.S. 40, 51 (1980) (“The priest-penitent privileg e recog niz es the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be fla w e d a c t s or thoug hts and to receive priestly c onsolation and g uidance in return.”). F ather Dan testified that he did n o t h e ar B ’s recantation in confessional—neither he nor B has claimed- p riest-penitent privileg e—and thus he w as f r e e a n d willing to testify as to their con v e rs a t ion. Our point is not that the priest-penitent

r e lationship is involved h ere, o nly that a priest’s testimony

, because o f the special rela tionship and c onfidence that
pe n i t e n t s have in their priests, may carry additional w eig ht with a jury

. At the least, B ’s conversation with F ather Dan would have carried much g reater weig h t with the jury than her recantation to her mother.V E G A V

. R Y A N 31

I n sum, F ather Dan’s testimony “ would h ave ad d e d a n entirely new dimension to the jury ’s assessment” of the victim’s testimony such that “there is a reasonable probability that the [ unpresented] evide n c e would h ave altered at least

one juror’s a ssessment [ o f the evidence] .” United States v

. K o h r i ng , 637 F .3d 895, 905–06 ( 9th Cir. 2010) (quotation marks a nd citation omitted). F ather Dan’s testimon y w o u ld have undermined the prosecution’s arg ument t h a t t he victim’s mother had pr essured her to recant in order to protect V eg a (her husba

n d )

, b e c a u s e the victim independently recanted—in private—to a priest who had no reason to pressure her. And,
g iven the unique role that relig ious officials play in people’s lives, the testimony of a priest who heard what he believed to be a sincere r ecantation c o u l d h ave tipped the scales in Veg a’s favor.

F inally

, there is an additional indicator of prejudice here because the jury had a d ifficult time reaching a verdict. 8 See Kotteakos v

. U

nited States
, 328 U.S. 750, 764 (1946) (discussing harmless error and ex plaining that “the appellate
court can[ not] escape altog ether taking a ccount of the [ trial]
outcome. To weig h the errors effect ag ainst the entire setting of the r ecord without relation to the v erd i c t o r judg ment would b e 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). I n d e e d

, the jurors could n o t r e ach a unanimous verdict o n t h ree of the eig ht counts a nd the jury found Veg a g uil t y o f a lesser-included offense on the third

8 T h e j u ry i n itially in f

o rm ed th e co u r t t h a t it w as d ead lo ck ed “ w ith n o ap p aren t ch an g e of ag reem en t.” A f ter receiv in g ad d itio n al in stru ctio n s t h e j u ry co n v icted Veg a o n co u n t on e, a lesser- in clu d ed o f f en se o n c o u n t th ree, an d co u n ts f

iv e, s i x , an d eig h t. T h e j u ry co u ld n o t reach a v erd i ct

o n co u n ts tw o , f

o u r, an d sev en

.V E G A V

. R Y A N 32

count. Given that at least one juror voted that Veg a was not g uilty on three counts, “there is a reasonable probability that
at least one juror w ould have struck a different balance” on the remaining five counts h ad he or she heard F ather D an’s testimony

. W

iggins , 539 U.S. at 537.

According ly

, we conclude that “ther e is a reasonable probability that, but for counsel’s un p r o f essional e rrors, the resul t of the p roceeding would have b een different.” Strickland

, 4 66 U.S. at 689. We further c onclud e t h a t the
state court’s f

inding s that F ather Dan’s testimony would have been cumulative and w ould have had no effect on the verdict is an unreasonable determination o f t h e f a c ts in lig ht of the evidence presented in the state court proceeding s. 28 U .S.C. § 2254(d)(2). W ith a l l d u e respect for o ur state c olleag u es, the state court’s application of Strickland was o bj e ct ively unreasonable because Veg a’s couns e l was ineffective when he failed to review his client’s file and failed to interview a nd then call F ather Dan in his client’s de f e n s e

. The Supreme Court has held that such a failure to investig a t e e x c u lpatory evidence necessarily constitutes def i c ient performance even when the c lient knew of the evidence, but never informed his attorney

. Rompilla

, 545 U.S. a t 383. Given that B ’s testimony w as the cornerstone of the state’s c ase, that F ather Dan’s testimony would have undermined her credibility

, a nd that the jury strug g led to reach the verdict, “ t h e re is a reasonably probability

that, but for counsel’s unprofessional

errors , t h e result o f the proceeding would have been different.” Strickland , 466 U.S. at 694.V E G A V

. R Y A N 33

I I I . CONCL USI ON

The judg ment of the di s t r i ct court is reversed. The case is remanded with instru ct i o n s to g rant the writ of h abeas
corpus.

REVERSED AND REMANDED.