Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1989)

MEMORANDUM^*

James Ramirez, an Arizona state prisoner, appeals pro se the district court's dismissal of his Sec. 2254 habeas corpus petition. Ramirez contends that he received ineffective assistance of counsel because his counsel did not move for a severance of his trial from that of his codefendant. He claims that had the trial been severed, his codefendant would have testified and exculpated him.

We review the district court's decision to dismiss a petition for habeas corpus de novo, Harding v. Lewis, 834 F.2d 853, 856 (9th Cir. 1987), and reverse.

To obtain relief for a claim of ineffective assistance of counsel on a habeas corpus review, the petitioner must show both that his counsel's performance fell below objective standards of reasonableness and that he suffered prejudice because there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Rodriguez v. Ricketts, 798 F.2d 1250, 1253 (9th Cir. 1986) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

As a preliminary matter, appellees' motion to strike references to an affidavit not presented to the district court is granted. Fed. R. App. P. 10; see Daly-Murphy v. Winston, 837 F.2d 348, 351 (9th Cir. 1987) (refusing to consider an affidavit not considered by the trial court).

Nevertheless, Ramirez did present two affidavits to the district court. One was his own sworn statement that he had informed his counsel about the possibility of exculpating testimony being given by his codefendant if the trial were severed. The other was a statement from his codefendant that if the trial had been severed he would have testified that he was at the crime scene but that Ramirez was not. Together, these statements are sufficient to warrant the holding of an evidentiary hearing on the factual issue of whether trial counsel was aware of this information and if so, whether his decision not to pursue a motion to sever was deficient as outside the wide range of professionally competent assistance and whether there is a reasonable probability that but for any such deficient performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at 690, 694-96.

The judgment of the district court is REVERSED and the case is REMANDED for further proceedings consistent with this Memorandum disposition.