NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL LAMAR ROSE, 

Petitioner-Appellant, 

 v. 

A. HEDGPETH; XAVIER BECERRA, 

Attorney General, 

Respondents-Appellees.

No. 15-56950 

D.C. No. 

5:11-cv-01654-MMM-JPR 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted May 14, 2018

Pasadena, California

Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.

Michael Lamar Rose appeals from the denial of his petition for a writ of 

habeas corpus. As the parties are familiar with the facts, we do not recount them 

here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse 

in part, and remand with instructions.

1. Denial-of-Counsel Claim. Contrary to petitioner’s argument, the 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAY 22 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

California court of appeal adjudicated his denial-of-counsel claim “on the merits.” 

28 U.S.C. § 2254(d). Petitioner’s opening brief in that court featured two 

arguments, the latter of which asserted the constructive denial of counsel during 

post-trial proceedings. The court of appeal’s opinion also addressed petitioner’s 

appeal in two parts, indicating that the court recognized that petitioner was 

asserting two distinct arguments, the second of which related to the denial of 

counsel, and that it sought to address each of those arguments in turn. The court of 

appeal’s citation, moreover, to California case law premised on the Sixth 

Amendment right to counsel, see People v. Smith, 863 P.2d 192, 196–99 (Cal. 

1993) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)), indicates that the court 

“understood itself to be deciding a question with federal constitutional 

dimensions,” Johnson v. Williams, 568 U.S. 289, 305 (2013), and thus that it 

resolved petitioner’s claim “on the merits,” 28 U.S.C. § 2254(d).

The U.S. Supreme Court has never held that a post-trial, pre-appeal motion 

for a new trial is a “critical stage” to which the Sixth Amendment right to counsel 

applies. United States v. Cronic, 466 U.S. 648, 659 (1984). There being no such 

precedent, petitioner’s argument that the California court of appeal’s decision was 

“contrary to, or involved 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), necessarily fails. See, e.g., Marshall v. Rodgers, 569 U.S. 58, 61–64 
3 

(2013) (per curiam); Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).

2. Ineffective-Assistance Claim. Because respondents failed to “raise the 

issue of procedural default in [the] district court or on appeal,” they have forfeited 

any argument that petitioner’s ineffective-assistance claim is procedurally 

defaulted. Chaker v. Crogan, 428 F.3d 1215, 1220 (9th Cir. 2005). 28 U.S.C. 

§ 2254(d) does not apply, moreover, because petitioner did not raise his standalone 

ineffective-assistance claim until his second state habeas petition and the 

California superior court order denying that petition stated only that it was “a serial

petition alleging no new facts.” We must therefore review petitioner’s ineffectiveassistance claim de novo. See James v. Ryan, 733 F.3d 911, 914 (9th Cir. 2013); 

see also Fox v. Johnson, 832 F.3d 978, 985–86 (9th Cir. 2016). 

Taking his specific factual allegations as true, petitioner has pleaded a 

colorable ineffective-assistance claim in two respects. See Schriro v. Landrigan, 

550 U.S. 465, 474 (2007). First, trial counsel may have been deficient in declining 

to view, investigate, and attempt to introduce an alleged video of an interview in 

which petitioner’s alleged victim Denmon purportedly admitted to framing

petitioner. Second, trial counsel may have been deficient in declining to call 

Charlene Bell and Africa Bolden, who petitioner avers would have testified that 

Denmon admitted, among other things, that “he was allowing [petitioner] to 

possibly spend his life in prison” to retaliate against one of petitioner’s co-
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defendants. The record does not disclose trial counsel’s reasons, strategic or 

otherwise, for not investigating and not attempting to introduce either the alleged 

video or Denmon’s purported admission to Bell and Bolden of having framed 

petitioner.1 See Strickland v. Washington, 466 U.S. 668, 690–91 (1984); Howard 

v. Clark, 608 F.3d 563, 573 n.4 (9th Cir. 2010); see also Duncan v. Ornoski, 528 

F.3d 1222, 1237 n.7 (9th Cir. 2008).

Petitioner makes a colorable argument, moreover, that there is a “reasonable 

probability that, but for counsel’s unprofessional errors, the result . . . would have 

been different.” Strickland, 466 U.S. at 694. As the only witness who could have 

seen whether petitioner was either a willing participant in the crime or merely 

acting under duress, Denmon’s credibility was a central issue in petitioner’s trial, 

and evidence that he had admitted to having framed petitioner to retaliate against

petitioner’s co-defendant would have undercut Denmon’s credibility. Moreover, 

the jury sent the trial court seven notes seeking, among other things, clarification as 

 

1 Petitioner has otherwise failed to plead a colorable ineffective-assistance claim: 

“the record refutes” his theory that trial counsel was deficient in refusing to call

Peggy Ramos and Laquanda Rose to testify that associates of petitioner’s codefendant Donald Shorts intimidated them at their home after the murder-robbery.

Landrigan, 550 U.S. at 474. Counsel’s explanations at the Marsden hearing for his 

refusal to call these witnesses—that evidence regarding petitioner’s reasons for his

out-of-state travel may have evidenced consciousness of guilt, thereby 

undermining his duress defense, and that calling Ramos and Rose may have 

prompted damaging rebuttal testimony by the prosecution—were well within the 

range of sound trial strategy. See Brodit v. Cambra, 350 F.3d 985, 992–93 (9th 

Cir. 2003).
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to aiding-and-abetting liability; a playback of petitioner’s police interview; and 

readbacks of Denmon’s testimony regarding his and petitioner’s movements before 

the crime. The jury was also deadlocked ten-to-two or eleven-to-one as to 

petitioner even after it had already convicted his co-defendants. These 

circumstances suggest that petitioner’s case was close. Petitioner has therefore 

pleaded “a colorable claim [to relief].” Scott v. Schriro, 567 F.3d 573, 583 (9th 

Cir. 2009) (per curiam) (alteration in original).

Contrary to respondents’ argument, petitioner has not “failed to develop the 

factual basis of [his ineffective-assistance] claim in State court proceedings” such 

that 28 U.S.C. § 2254(e)(2) governs his eligibility for an evidentiary hearing. 

Because the state courts denied petitioner’s second state habeas petition “without 

ordering formal pleadings,” petitioner “never reached the stage of the [state

habeas] proceedings at which an evidentiary hearing should be requested” and thus 

“has not shown a lack of diligence at the relevant stages of the state court 

proceedings . . . .” Horton v. Mayle, 408 F.3d 570, 582 n.6 (9th Cir. 2005) 

(internal quotation marks omitted) (citing Williams v. Taylor, 529 U.S. 420, 437 

(2000)). Moreover, petitioner expressly requested an evidentiary hearing in the 

California court of appeal. See Williams, 529 U.S. at 437. Thus, 28 U.S.C. 

§ 2254(e)(2) does not apply.

Because 28 U.S.C. § 2254(e)(2) does not bar a hearing; because petitioner 
6 

has “raise[d] a colorable claim to relief”; and because “there has not been a state or 

federal hearing on” his ineffective-assistance claim, “we must remand to the 

district court for an evidentiary hearing.” Scott, 567 F.3d at 583 (brackets and 

internal quotation marks omitted); see also Townsend v. Sain, 372 U.S. 293, 312–

13 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 

(1992).

3. Accordingly, although we affirm the district court’s denial of relief as to 

petitioner’s denial-of-counsel claim, we reverse the denial of relief as to 

petitioner’s Strickland claim and remand the case for an evidentiary hearing at 

which petitioner’s colorable allegations of ineffective assistance may be subjected 

to proof. Once the factual record has been fully developed, the district court 

should consider in the first instance whether petitioner has demonstrated 

entitlement to habeas relief. We express no opinion on that question here.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.