## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 9 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PEDRO GONZALES,

Petitioner - Appellant,

v. No. 97-2247 RON LYTLE, Warden, Southern New Mexico Correctional Facility; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. NO. CIV-95-249-HB/JHG)

Todd B. Hotchkiss, Frechette & Associates, Albuquer que, New Mexico, for Appellant. Margaret E. McLean, Assistant Attorney General (TomUdall, Attorney General, with her on the brief), Santa Fe, New Mexico, for Appellees.

Before ANDERSON , TACHA , and EBEL , Circuit Judges.

ANDERSON , Circuit Judge.-2-

Petitioner Pedro Gonzales, Sr. appeals the denial o f his 28 U.S.C. § 2254 habeas petition. He was convicted by a jury of fir st degree murder, shooting into an occupied motor vehicle, and being a felon in pos session of a firearm, in connection with the murder of Michael Sandoval. We reverse and remand.

BACKGROUND There was a “history of animosity” between Ben Rive ra and Pedro Gonzales and the Gonzales family, particularly Pedro’s son, Martin. State v. Gonzales , 824 P.2d 1023, 1025 (N.M. 1992). On the day of t he shooting, August 6, 1988, Mr. Rivera drove his truck, with th e victim, Mr. Sandoval, in the passenger seat, down an alley behind the Gonzales r esidence. Mr. Rivera testified that as he drove past the Gonzales home, Martin Gon zales and an unidentified individual opened fire on the truck, killing Mr. Sa ndoval. Mr. Rivera testified that he could not determine whether the second shoo ter was male or female. Present at the Gonzales home at the time of the sho oting were Pedro Gonzales; his wife, Yolanda; his son, Martin; and Martin’s co mmon law wife, Judy Carillo. The fatal shot was fired from a gun belonging to Yo landa Gonzales. Uncontradicted evidence at trial established that P edro Gonzales, at the time of the shooting, walked with a cane, had been wearing a neck collar, and was recovering from surgery. He had been adjudged temp orarily totally disabled in a-3-

workers’ compensation proceeding. His neighbor, ho wever, testified that he moved around “just fine” with his cane. At the state post-conviction hearing, Pedro Gonzales’ attorney described him as “immobili zed to some degree.” The only potential witnesses to the shooting were M r. Rivera and the various members of the Gonzales family who were in the residence. Martin Gonzales did not deny shooting at Mr. Rivera’s truc k. He claimed, however, that he had done so alone and in self-defense, after his wife, Judy Carillo, told him she had seen Mr. Rivera pointing a gun at them as theirvehicles passed each other prior to the shooting. Pedro Gonzales has consiste ntly denied any involvement in the shooting. Thus, Pedro’s identity as the secondshooter was the key issue in his trial. The other members of the Gonzales famil y gave varying, and at times, conflicting, accounts of what happened. We will di scuss those where relevant. The police arrested Pedro Gonzales after Regina Gon zales, Pedro Gonzales’ daughter-in-law and the wife of Albert Gonzales, gave a taped statement to police on August 19 indicating that when she and her husband returned to the Gonzales home several hours after the shooting, she saw Mart in and Pedro Gonzales holding guns. She also stated that she overheard P edro, in a conversation with his sons, say that he had shot some people earlier in t he evening. Regina later admitted, however, that this conversation had taken place in Spanish, a language1 The state does not indicate in its brief that evide nce of this statement to

police, claiming that Regina had overheard Pedro ad mit to the shooting, was ever presented to the jury. Furthermore, as we note inf ra , Regina changed her story virtually every time she testified, so much so thatthe state trial court, in denying Pedro post-conviction relief, observed that Regina “contradicted herself multiple times, often in the same hearing, on many subjects including the source of her knowledge.” Tr. of Record Proper Vol. 3, at 368. -4- she does not understand. 1 At the time she made that statement to police, sh e and her husband had just separated, Albert Gonzales hadfiled for divorce because of Regina’s infidelity, and Regina and her infant son were living at a women’s shelter. Both Pedro and Martin were charged with first degre e murder and shooting into an occupied motor vehicle. At Martin’s prelim inary hearing, Regina Gonzales testified, contrary to her earlier taped s tatement, that she had not seen either Martin or Pedro Gonzales with a weapon on th e evening of the shooting. She further testified that she knew nothing about t he shooting. Judy Carillo asserted her Fifth Amendment rights in Martin’s pre liminary hearing and did not testify. At Pedro’s preliminary hearing, Pedro’s counsel was initially unaware of any evidence that would directly link Pedro to the shooting. At a break in the hearing, however, Martin Gonzales’ attorney informe d Pedro’s counsel that Judy Carillo and Regina Gonzales would, later in the hea ring, tie Pedro to the shooting.-5-

The state had applied to the court for use immunity for Ms. Carillo in an effort to force her to testify. When Pedro’s counsel inquired, Ms. Carillo related that if she were to testify, she would state that she saw Pedro and Martin Gonzales fire at Ben Rivera’s truck, but only after Mr. Rivera had point ed a weapon at them. Ms. Carillo, called as a witness by the state, did give this testimony at the preliminary hearing. Pedro’s counsel did not cross-examine her , although the court gave counsel that opportunity. Regina Gonzales also tes tified at Pedro’s preliminary hearing, stating, contrary to what she had said in Martin Gonzales’ preliminary hearing, that when she and Albert had returned home several hours after the shooting, she had seen Pedro with a rifle in his hand. Pedro and Martin were tried jointly. During the tr ial, when the state sought to call Judy Carillo as a witness, the trial court held a hearing outside the presence of the jury to determine whether Ms. Caril lo intended to invoke her Fifth Amendment privilege not to testify. The trial court was concerned that, should Ms. Carillo testify differently at trial than she h ad at Pedro Gonzales’ preliminary hearing, and there apparently was some indication t hat she would testify differently, she would expose herself to a perjury conviction because, regardless of which testimony was true, she would have inconsi stently testified under oath in two different proceedings. The court placed Ms. Ca rillo under oath, whereupon2 The court properly limited the jury’s consideration of Ms. Carillo’s

preliminary hearing testimony to Pedro Gonzales bec ause Martin Gonzales’ attorney was not present during Pedro Gonzales’ pre liminary hearing, and therefore had no opportunity to cross-examine Ms. C arillo. -6- she testified that her preliminary hearing testimony identifying Pedro Gonzales as the second shooter was false. Ms. Carillo ultimate ly invoked her Fifth Amendment privilege and declined to testify at Pedr o Gonzales’ trial. Over Pedro’s objection, the court allowed the state to admit into evidence Ms. Carillo’s preliminary hearing testimony, becaus e she was unavailable to testify at trial. The trial court, however, denied Martin Gonzales’ motion seeking to inform the jury that Ms. Carillo had subsequentl y, under oath, recanted that testimony. Pedro Gonzales’ counsel did not move to introduce evidence of that recantation. The jury therefore heard Ms. Carillo’ s preliminary hearing testimony, which was the only evidence directly tyi ng Pedro Gonzales to the shooting, and was instructed to consider it only ag ainst Pedro, not against Martin Gonzales. 2 Regina Gonzales testified at trial, stating that th e testimony she gave at Pedro’s preliminary hearing was false. She asserte d that she had, in fact, never seen Pedro with a weapon on the night of the shooti ng, and that the district attorney had coerced her preliminary hearing testim ony by threatening to have the state take custody of her child.3 The recent amendments to § 2254 enacted in the Anti terrorism and

Effective Death Penalty Act do not apply to this pe tition because it was filed prior to the effective date of that Act. See Richmond v. Embry , 122 F.3d 866, 870 (10th Cir. 1997), cert. denied , 118 S. Ct. 1065 (1998). -7- Although his attorney strongly advised him to testi fy at trial, Pedro refused. The jury convicted Pedro of first degree murder, sh ooting into an occupied vehicle, and being a felon in possession of a firea rm, and he was sentenced to life in prison plus three years. The New Mexico Supreme Court affirmed his conviction. State v. Gonzales , 824 P.2d 1023 (N.M. 1992). Pedro Gonzales’ first state post-conviction petition was denied. He file d a second state post-conviction petition arguing ineffective assistance of counsel. Following an evidentiary hearing, the court concluded that Pedro had effecti ve assistance of counsel and denied the petition. This federal habeas petition was filed on March 9, 1995. 3 The district court dismissed the petition, and this appeal followed. We issued a certificate of probable cause on June 4, 1998. On appeal, Pedro Gonzales argues: (1) the introduc tion at trial of Ms. Carillo’s preliminary hearing testimony violated hi s Sixth Amendment right to confront the witnesses against him; (2) his attorne y was ineffective for (a) failing to cross-examine Ms. Carillo at the preliminary hea ring; (b) pursuing a defense other than that claimed by Pedro; (c) failing to se ek the introduction at trial of Ms. Carillo’s statement recanting her preliminary h earing testimony; (d) failing to4 Although Pedro largely couches his claims about the recantation testimony

in terms of whether his counsel was ineffective in failing to seek its admission, he (continued...) -8- request an instruction limiting the jury’s consider ation of Regina Gonzales’ preliminary hearing testimony; and (e) failing to m ove to sever Pedro’s trial from that of Martin and to sever the felon-in-possessionof a firearm charge from the other counts; and (3) his trial was rendered fundam entally unfair, in violation of due process, by the court’s refusal to admit Ms. Carillo’s recantation.

DISCUSSION “In reviewing the denial of a petitioner’s habeas p etition, we accept the district court’s factual findings unless they are c learly erroneous and we review the court’s legal conclusions de novo.” Houchin v. Zavaras , 107 F.3d 1465, 1469 (10th Cir. 1997) (footnote omitted). Because we fi nd that Pedro is entitled to habeas relief on one of his arguments, we address i t alone. Pedro Gonzales makes two arguments relating to the refusal to admit Ms. Carillo’s recantation: first, his counsel was inef fective in failing to seek the introduction of Ms. Carillo’s recantation, and seco nd, the exclusion of that recantation rendered his trial fundamentally unfair , in violation of the Fourteenth Amendment due process clause. We grant habeas reli ef on his Fourteenth Amendment claim. 44 (...continued)

does also make the separate due process argument. The parties dispute whether he raised the separate due process argument in stat e court proceedings. In any event, he raised it before the federal district cou rt, and the state has conceded that it did not argue the issue was procedurally barred. While we may suasponte raise procedural bar, we are not obligated to, and we dec line to do so in this case.

5Neither in its brief nor at oral argument, despite direct questioning on the point, did the state refer to any other testimony o r evidence in the record of this case directly linking Pedro to the shooting, or ide ntifying him as the second shooter. As indicated earlier, Regina Gonzales was thoroughly discredited as a witness, and, in any event, she testified at trial that she had never seen Pedro with a gun on the night of the shooting. -9- Pedro argues the trial court’s refusal to admit Ms. Carillo’s recantation rendered his trial fundamentally unfair. See Matthews v. Price , 83 F.3d 328, 331 (10th Cir. 1996) (“We review due process challenges to state evidentiary rulings only for fundamental unfairness . . . .”). This in quiry “hinges on the materiality of the excluded evidence to the defense.” Id. at 332; see also Maes v. Thomas , 46 F.3d 979, 987 (10th Cir. 1995). On habeas review, “our inquiry is limited to whether the court’s hearsay determinations deprivedthe defendant of his constitutional rights to due process and to compel favorable testimony.” Matthews , 83 F.3d at 332. There can be little doubt that Ms. Carillo’s recant ation was material to Pedro Gonzales’ defense and favorable to him. Ms. Carillo’s preliminary hearing testimony, in which she said she saw Pedro particip ate in the shooting, was the only piece of evidence directly linking Pedro to the shooting. 5 Her recantation of-10-

that testimony, under oath, would have inevitably c aused the jury to reflect critically on her preliminary hearing testimony. O f course, had the jury heard the recantation, there is a possibility that jurors wou ld have disregarded the recantation, believed the preliminary hearing testi mony, and convicted Pedro Gonzales. The problem, however, is that they were never given that opportunity. We conclude that the failure to permit the jury to consider the recantation, which undermined the credibility of the crucial singular piece of evidence directly inculpating Pedro, rendered the trial fundamentally unfair.

CONCLUSION For the foregoing reasons, we REVERSE and REMAND th is case to the district court with instructions to grant Pedro Gon zales’ habeas petition unless the state retries him within a reasonable time to be de termined by the district court.