Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1983)

MEMORANDUM^** 

On April 11, 1983, Gabriel Huerta had a heated argument with Guadalupe Nunez (the victim) and Octavio Cardozo in front of the victim's house on Blinn Avenue in Wilmington, California over four dollars Cardozo allegedly owed to Huerta. Huerta left after the argument. Cardozo and Nunez went inside the house where the victim got a handgun, gave it to Cardozo and told him to "send [Huerta] to hell" if he returned. Cardozo put the gun in his waistband and the two men went back outside and began working on a car in front of the house.

Meanwhile, Huerta took his girlfriend home and shortly thereafter took a loaded shotgun out of his trunk. This shotgun did not have a safety on it and was ready to fire. He returned to the victim's house with the shotgun about 20 to 30 minutes later.

Traveling north on Blinn Avenue, Huerta drove up to the victim's house with the shotgun in his car. Without stopping and when he was within ten feet of Cardozo and the victim, Huerta fired one shot killing the victim. Cardozo claimed that at this point Huerta sped up and Cardozo took out his gun and fired several shots at Huerta's car. However, Huerta testified Cardozo shot at his car before he shot the victim. Huerta said that once Cardozo shot, he ducked down in his car, stuck the shotgun out the window and shot. Huerta claimed self-defense at the trial, alleging that Cardozo fired first, but was convicted of first degree murder.

After discovering a police report, Huerta filed a petition for habeas corpus in state court which was denied without a hearing. He then filed for habeas relief in the district court, which was also dismissed without an evidentiary hearing. Huerta appeals, claiming he is entitled to relief because he received ineffective assistance of counsel and his incarceration violates due process. He also claims he is entitled to an evidentiary hearing.

According to exhibits and declarations submitted by Huerta along with his petition for writ of habeas corpus, there was a police report filed involving bullet damage done to a vehicle parked across the street from the crime scene. The report indicates the damage occurred between 2:30 p.m. and midnight on April 12, 1983. A declaration from the vehicle owner obtained by Huerta's investigator after the conviction states the damage actually occurred on April 11th, the day of the shooting. Huerta also submitted a declaration from his trial defense attorney indicating the damage report was not further investigated because the dates were different, leading the attorney to believe the incident was unrelated to Huerta's case. Huerta also submitted documents from his investigator that showed the location of the vehicle when shot as south of the area where the shooting took place. Huerta claims that if the bullet that struck the parked car came from Cardozo's gun, the trajectory would establish that Cardozo must have shot at him first, supporting Huerta's self-defense theory.

An evidentiary hearing must be held in habeas proceedings where: (1) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts, and (2) the petitioner's allegations, if proven, would establish a right to relief (a prima facie case of the constitutional violation alleged). Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir. 1986).

The state court never determined the relevant facts in this case. Huerta discovered the mistake in the police report after the trial was over. His state habeas claims were denied without hearings. There has never been a factual finding on the placement of the vehicles in the street, the identity of the bullet or the trajectory of the bullet. "There cannot even be the semblance of a full and fair hearing unless the state court actually reached and decided the issues of fact tendered by the defendant." Townsend v. Sain, 372 U.S. 293, 313-14 (1963).

Further, Huerta's allegations, if proven, establish a prima facie case of a due process violation, entitling him to an evidentiary hearing. Van Pilon, 779 F.2d at 1338. A claim of newly discovered evidence relevant to the guilt of a state prisoner only qualifies for habeas relief if the evidence bears upon the constitutionality of the prisoner's detention. Townsend, 372 U.S. at 317. For the new evidence to bear upon the constitutionality of a prisoner's detention, the new evidence must be such that it would probably produce an acquittal. Quigg v. Crist, 616 F.2d 1107, 1112 (9th Cir.), cert. denied, 449 U.S. 922 (1980).

The newly discovered evidence is bullet damage to the windshield of a car that occurred the same day as the shooting. The car was parked across the street and allegedly slightly south of where the shooting took place. Huerta alleges that the bullet that hit the car's windshield may have been from Cardozo's gun. This case consisted primarily of testimony from Huerta and the eyewitness, and they each gave conflicting accounts of the order of the shootings, but neither story was substantiated by physical evidence. If the facts alleged by Huerta are proven, and the bullet that hit the car windshield is from Cardozo's gun, this, combined with the location of the cars, would be physical evidence to corroborate Huerta's version of events that Cardozo shot first. This evidence would probably have given rise to a reasonable doubt that Huerta was acting in self-defense, thus leading to an acquittal on the first degree murder charge.

Huerta has shown that his allegations, if proven, would probably lead to an acquittal, establishing his right to relief for a due process violation. Therefore, the district court erred in denying Huerta an evidentiary hearing. We reverse and remand so the district court can hold a hearing and redetermine whether Huerta's constitutional rights have been violated.¹  Due to the complexity of the issues in this case, we also order the district court to appoint counsel to represent Huerta in his habeas corpus proceedings. On remand, the district court shall also consider whether Huerta exhausted all available state remedies as to his ineffective assistance of counsel claim.

REVERSED AND REMANDED.