Unpublished Disposition, 927 F.2d 610 (9th Cir. 1989)

MEMORANDUM^**

Richard Rodriguez, an Arizona state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. Rodriguez contends that he was deprived of his sixth amendment right to effective assistance of counsel. We reverse and remand.

Rodriguez's criminal trial in Arizona Superior Court lasted approximately three days during which time the state called approximately 15 witnesses. State v. Rodriguez, 126 Ariz. 28, 30, 612 P.2d 484 (1980). At the end of the state's case in chief, Rodriguez's attorney announced that he also rested. Rodriguez immediately objected and subsequently submitted a "Motion to Dismiss Counsel" and requested the appointment of new counsel. The state court held a hearing on Rodriguez's motion, at the close of which it denied the motion. Id. at 30, 32-33. Rodriguez was then found guilty of first degree murder and four counts of assault with a deadly weapon.

Rodriguez did not provide the district court with any portion of the state trial transcript when he filed his habeas corpus petition. The district court ordered the defendants to file a response to the habeas petition. In its response papers, the state included the trial transcript of only the first day of Rodriguez's criminal trial. The district court did not order the state court record.

In his habeas petition, Rodriguez maintains that he was deprived of his fundamental right to effective assistance of counsel due to his attorney's failure to put forth a defense in his favor. This is a mixed question of law and fact requiring the application of legal principles to the historical facts. See Strickland v. Washington, 466 U.S. 668, 698 (1984); Deutscher v. Whitley, 884 F.2d 1152, 1155 (9th Cir. 1989), petition for cert. filed, 58 U.S.L.W. 3353 (U.S. Nov. 6, 1989) (No. 89-753). Because the habeas petition presents a mixed question of law and fact, the district court has a duty sua sponte to obtain the state court record and to conduct a "complete and independent review" of that record. See Ruff v. Kincheloe, 843 F.2d 1240, 1242-43 (9th Cir. 1988), (citing Chaney v. Lewis, 801 F.2d 1191, 1194-95 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987)).

In its order denying Rodriguez's sixth amendment claim, the district court did not indicate that it had undertaken a review of the state court record. The district court merely cited findings of the Arizona Supreme Court in its opinion denying Rodriguez's request for post-conviction relief. The district court could not, however, rely on the Arizona Supreme Court's opinion as a substitute for independent review of the state court record. See Chaney, 801 F.2d at 1193.

Whether Rodriguez's counsel rendered effective assistance in this case could only be determined upon review of his attorney's performance during the entire criminal trial, including the hearing on Rodriguez's motion to dismiss counsel. The district court erred in denying Rodriguez's petition without sua sponte ordering and examining the state court record. See Hamilton v. Vasquez, 882 F.2d 1469, 1470-72 (9th Cir. 1989). Therefore, the judgment of the district court must be reversed and remanded with instructions to obtain and review the relevant portions of the state court record and determine whether an evidentiary hearing is required. See Id. at 1472-73.

REVERSED and REMANDED.