Opinion
No. 07-55507.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed December 14, 2009.
Andres Gonzalez, Tehachapi, CA, pro se.
Stephanie A. Miyoshi, Esq., AGCA-Office of the California Attorney General, Los Angeles, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Central District of California, Gary A. Feess, District Judge, Presiding. D.C. No. 2:04-cv-04795-GAF.
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
California state prisoner Andres Gonzalez appeals from the district court's judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we vacate and remand.
Gonzalez contends that his defense counsel was ineffective by failing to present the testimony of Dagoberto Cardona. We vacate the district court's denial of the habeas petition and remand to the district court to hold an evidentiary hearing and rule on the merits of Gonzalez's ineffective assistance of counsel claim. See Scott v. Schriro, 567 F.3d 573, 584 (9th Cir. 2009) (per curiam) (remanding to district court to conduct an evidentiary hearing); see also Houston v. Schomig, 533 F.3d 1076, 1083 n. 4 (9th Cir. 2008) (remanding sua sponte).
We note that defense counsel's performance was far from stellar. See, e.g., In re Vargas, 83 Cal.App.4th 1125, 100 Cal.Rptr.2d 265 (Ct. App. 2000) (enumerating defense counsel's performance in past cases).