NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              NOV 18 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

SALVADOR A. RODRIGUEZ,                           No. 12-15485

              Petitioner - Appellant,            D.C. No. 4:04-cv-02233-PJH

  v.
                                                 MEMORANDUM*
DERRAL G. ADAMS, Warden and
WARDEN, C.S.A.T.F.,

              Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                      Argued and Submitted October 9, 2013
                            San Francisco, California

Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.

       Salvador Rodriguez appeals the district court’s judgment denying his

petition for habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291

and 2253. We affirm in part and reverse in part.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     Rodriguez’s first claim of ineffective assistance of trial counsel arises

out of his attorney’s alleged failure to investigate and present the testimony of

Vonree Alberty and Kenneth Jackson, two potential exculpatory witnesses who

were present during the incident that led to Rodriguez’s second degree murder

conviction. This claim was presented in a supplemental traverse filed after the

one-year deadline imposed by the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”). See 28 U.S.C. § 2244(d). Rodriguez’s original, timely-filed

petition for habeas corpus alleged ineffective assistance of trial counsel based on

his attorney’s failure to investigate three other witnesses who were also present

during the incident.

      Under Rule 15(c) of the Federal Rules of Civil Procedure, an amendment to

a pleading relates back to the date of the original pleading “[s]o long as the original

and amended petitions state claims that are tied to a common core of operative

facts.” Mayle v. Felix, 

, 664 (2005). The district court concluded that

Rodriguez’s newly-alleged claim of ineffective assistance of trial counsel satisfied

this standard. We agree. The individuals identified in Rodriguez’s original

petition and supplemental traverse were all potential percipient witnesses who were

present at the same underlying event. Consequently, the rationale for why

Rodriguez’s counsel allegedly should have investigated those individuals prior to


                                        Page 2
trial and presented their testimony at trial share a common basis. The claim of

ineffective assistance of trial counsel presented in Rodriguez’s supplemental

traverse does not therefore “assert[] a new ground for relief supported by facts that

differ in both time and type from those the original pleading set forth.” Schneider

v. McDaniel, 

, 1150 (9th Cir. 2012) (quoting Mayle v. Felix, 

, 650 (2005)) (internal quotation mark omitted). As such, this claim

relates back to the date of Rodriguez’s original petition and is not barred by

AEDPA’s one-year statute of limitations.

      2.     The district court stayed Rodriguez’s habeas petition to permit him to

exhaust this newly-asserted claim in state court. The California Supreme Court

denied the claim as untimely, citing In re Robbins, 

(Cal. 1998), and

In re Clark, 

(Cal. 1993). The district court consequently deemed

Rodriguez’s claim to be procedurally defaulted. Additionally, the district court

declined to excuse Rodriguez’s default, finding that although “Rodriguez can

likely demonstrate prejudice, he has not demonstrated sufficient cause.”

      On appeal, Rodriguez argues that his procedural default may be excused

under Martinez v. Ryan, 

(2012), a decision issued seven months

after the district court rendered its decision on this claim. Martinez announced an

equitable rule by which cause for excusing a procedurally-defaulted claim may be


                                       Page 3
found, inter alia, where a petitioner could not have raised the claim on direct

review and was not appointed counsel on state collateral review.

       [A] federal habeas court [may] find “cause,” thereby excusing a
       defendant’s procedural default, where (1) the claim of “ineffective
       assistance of trial counsel” was a “substantial” claim; (2) the “cause”
       consisted of there being “no counsel” or only “ineffective” counsel
       during the state collateral review proceeding; (3) the state collateral
       review proceeding was the “initial” review proceeding in respect to
       the “ineffective-assistance-of-trial-counsel claim”; and (4) state law
       requires that an “ineffective assistance of trial counsel [claim] . . . be
       raised in an initial-review collateral proceeding.”

Trevino v. Thaler, 

, 1918 (2013) (quoting 

–1319, 1320–1321) (first two alterations added, last two alterations in

original).

       Martinez appears to offer Rodriguez a clear path for relief. First, Rodriguez

lacked counsel during his state collateral proceeding.1 Second, that proceeding


       1
        Although Rodriguez errs in focusing on the alleged ineffectiveness of his
appellate counsel for not proceeding to file a state habeas petition—rather than on
his lack of counsel on collateral review—we do not find this error to be fatal to his
claim. The State does not contest the fact that Rodriguez was only appointed
counsel during his federal collateral proceeding, and not his state collateral
proceeding. Therefore, we find this factor satisfied. Cf. Hall v. City of Los
Angeles, 

, 1071 (9th Cir. 2012) (“We may consider an issue sua
sponte if failure to do so would result in manifest injustice, or if the opposing party
will not suffer prejudice.”). Further, Rodriguez explicitly identified Martinez as a
basis for relief and offered arguments regarding Martinez’s other three
requirements. The State, moreover, specifically addressed Rodriguez’s eligibility
for Martinez relief under these three requirements in its answering brief.

                                         Page 4
likely constituted an “initial-review proceeding.” See 

.

Third, California’s “state procedural framework, by reason of its design and

operation, makes it highly unlikely in a typical case that a defendant will have a

meaningful opportunity to raise a claim of ineffective assistance of trial counsel on

direct appeal.” 

; see also People v. Lopez, 

,

12 (Cal. 2008) (“[E]xcept in those rare instances where there is no conceivable

tactical purpose for counsel’s actions, claims of ineffective assistance of counsel

should be raised on habeas corpus, not on direct appeal.”). We therefore remand to

the district court to consider two questions: whether Rodriguez can demonstrate

cause under Martinez, in light of this court’s recent en banc decision in Detrich v.

Ryan, No. 08-99001, 

(9th Cir. Sept. 3, 2013) (en banc), and

whether Rodriguez can demonstrate prejudice under Coleman v. Thompson, 

(1991).

      3.     We reject Rodriguez’s contention that his trial counsel was

prejudicially ineffective for failing to introduce at trial a transcript of Roy

Ramsey’s preliminary hearing testimony. The district court correctly found that

the California Supreme Court did not unreasonably apply clearly established

federal law when it determined that the conduct of Rodriguez’s trial counsel fell

within “the wide latitude counsel must have in making tactical decisions.”


                                         Page 5
Strickland v. Washington, 

, 689 (1984). A review of Ramsey’s

preliminary hearing testimony reveals that it (1) contributed little to Rodriguez’s

theory of the case, (2) conflicted with portions of Rodriguez’s own trial testimony,

and (3) could have been significantly undermined through government

impeachment of Ramsey. The California Supreme Court thus reasonably rejected

this claim of ineffective assistance of trial counsel.

      The judgment of the district court is AFFIRMED in part and REVERSED

in part and REMANDED. Costs on appeal are awarded to Appellant.




                                        Page 6
                                                                                 FILED
Rodriguez v. Adams, No. 12-15485                                                 NOV 18 2013

                                                                            MOLLY C. DWYER, CLERK
N.R. SMITH, Circuit Judge, concurring in part and dissenting in part:         U.S. COURT OF APPEALS



      I agree that (1) Rodriguez’s claim that his trial counsel was ineffective for

failing to investigate and present as witnesses Vonree Alberty and Kenneth

Jackson relates back to his original claim of ineffective assistance; (2) this claim is

procedurally defaulted, because the California Supreme Court denied it on

independent and adequate state grounds; and (3) the California Supreme Court did

not unreasonably apply clearly established federal law when it denied Rodriguez’s

claim that his trial counsel was ineffective for failing to present Roy Ramsey’s

preliminary hearing transcript to the jury.

      However, the majority errs in determining that Rodriguez has potentially

shown cause for his procedural default based on his lack of counsel during his state

habeas proceedings. At no point throughout this appeal has Rodriguez argued that

filing his state habeas petition pro se shows cause to overcome the procedural

default. Although Rodriguez made that argument in the district court, he has

waived it on appeal by failing to “specifically and distinctly” make it in his

opening brief. United States v. Ullah, 

, 514 (9th Cir. 1992). Ignoring

this most basic principle of judicial restraint, the majority remands based on an

argument Rodriguez did not make on appeal and to which the government has not

                                          -1-
had a chance to respond.

      In order to have a federal court hear his procedurally defaulted claim,

Rodriguez must show cause for the procedural default and prejudice. See Coleman

v. Thompson, 

, 750 (1991). Rodriguez asserted in the district court

that his lack of counsel during his state habeas proceedings sufficed as cause for

the procedural default. However, Rodriguez abandoned that argument on appeal.

Instead, he argued in his opening brief that he can show cause because his state

appellate counsel was ineffective. He again made the same argument in his reply

brief and at oral argument: his state appellate counsel had an obligation to raise the

issue in state habeas proceedings, his state appellate counsel failed to do so, and

this ineffective assistance shows cause for the procedural default.

      Rodriguez’s argument lacks merit. He points to no case or statute that

requires his state appellate counsel to raise a claim of ineffective assistance in a

state habeas petition. His appellate counsel could not have been ineffective for

failing to fulfill an obligation she never had. Having found Rodriguez’s sole

argument on appeal lacks merit, our inquiry into whether he can show cause for the

procedural default should end.

      Instead, the majority searches for an argument Rodriguez could have made

that has merit. In that search, the majority decides that Rodriguez is potentially

                                          -2-
entitled to relief under Martinez v. Ryan, 

(2012), because he did

not have counsel in his state habeas proceedings. While that might be so,

Rodriguez did not make that argument on appeal. Rather than decide the case

based on the arguments presented to us by the parties, the majority here resurrects

an argument Rodriguez made in the district court but abandoned on appeal.

      The majority justifies raising the argument sua sponte because “Rodriguez

explicitly identified Martinez as a basis for relief.” Mem. Dispo. at 4 n.1.

However, Rodriguez cites to Martinez only in the context of his argument that the

ineffectiveness of his appellate counsel is sufficient to show cause. Citing a case

that supports an argument Rodriguez could have made is much different than

actually making the argument. See United States v. Williamson, 

,

1138 (9th Cir. 2006) (“[I]ssues raised in a brief which are not supported by

argument are deemed abandoned.”). There is a reason why we require the parties

to submit briefs rather than just tables of authorities.

      The majority further justifies raising the argument by citing Hall v. City of

Los Angeles, 

(9th Cir. 2012), for the proposition that we can raise

issues sua sponte “if failure to do so would result in manifest injustice, or if the

opposing party will not suffer prejudice.” 

However, the majority fails

to explain how either of these exceptions to the waiver rule apply to the case at

                                           -3-
hand.

        Contrary to the majority’s assertion, the waived argument does not offer

Rodriguez a “clear path for relief,” Mem. Dispo. at 4; at most it provides

Rodriguez a clear path for remand. However, even if the majority were correct that

the waived argument could provide Rodriguez relief, that does not mean our failure

to raise it sua sponte would result in manifest injustice. If that were true, the

exception would swallow the rule: Why would we ever sua sponte raise an

argument that we thought was meritless? The manifest injustice exception requires

more. See, e.g., 

(applying the manifest injustice exception

in the “extraordinary circumstances” of an innocent man enduring a

“constitutionally questionable” interrogation, being convicted through the use of

“patently false inculpatory evidence,” and serving “19 years in state prison for a

crime he did not commit”); 

(applying the manifest injustice

exception where a conviction was based on a nonunanimous verdict, because such

an error “is plain error” and the same error resulted in the co-defendant’s

conviction being reversed).

        Furthermore, the government has not had the opportunity to address the

majority’s argument, which is precisely the type of prejudice we intend the waiver

rule to prevent. See 

(finding appellees suffered no

                                          -4-
prejudice, because “we provided the parties the opportunity to brief this issue”);

Alcaraz v. I.N.S., 

, 1161 (9th Cir. 2004) (“[T]he government is not

prejudiced by the Alcarazes’ failure to raise the issue in their opening brief because

after oral argument we called for and received supplemental briefs by both parties

on the repapering issue.”); United States v. Gamma Tech Indus., Inc., 

, 930 (9th Cir. 2001) (finding appellees were not prejudiced because although

the “issue was not mentioned until oral argument, all parties have since discussed it

and briefed it”).

      The government had no reason to address the majority’s argument because,

as the government noted in its brief, Rodriguez abandoned the argument on appeal.

Imagine the government’s surprise when it discovers the majority has remanded

based on the abandoned argument. Football players call that a “double reverse;”

we call it prejudice. See Simpson v. Lear Astronics Corp., 

, 1176 (9th

Cir. 1996) (“We have discretion to consider improperly presented claims of error

where the appellee is not misled and the issue has been fully explored.” (emphasis

added)).

      Sua sponte raising an argument that we believe has merit can be tempting.

However, Rodriguez’s counsel decided to abandon the argument on appeal that

Rodriguez proceeding pro se in his state collateral proceeding shows cause. In

                                         -5-
light of the majority’s disposition, Rodriguez’s counsel made a mistake.

Nevertheless, the majority errs in raising that argument on Rodriguez’s behalf. See

Hartmann v. Prudential Ins. Co. of America, 

, 1214 (7th Cir. 1993)

(“[O]ur system . . . is not geared to having judges take over the function of lawyers,

even when the result would be to rescue clients from their lawyers’ mistakes.”). I

respectfully dissent.




                                         -6-