Argued and Submitted Sept. 12, 2013.
Patricia A. Taylor (argued), Law Office of Patricia A. Taylor, Tucson, AZ, for Petitioner-Appellant.
Thomas C. Horne, Attorney General, Kent Cattani, Division Chief Counsel, Joseph T. Maziarz, Section Chief Counsel, David A. Sullivan and Nicholas Klingerman (argued), Assistant Attorneys General, Tucson, AZ, for Respondents-Appellees.
Appeal from the United States District Court for the District of Arizona, Cindy K. Jorgenson, District Judge, Presiding.
Before: MARY M. SCHROEDER and JAY S. BYBEE, Circuit Judges, and RALPH R. BEISTLINE, Chief District Judge.[*]
BEISTLINE, Chief District Judge:
Petitioner, Pedro Imperial Vega, stands convicted of contributing to the delinquency of a minor, child molestation, and three counts of sexual abuse of his stepdaughter, based on events that occurred between 1996 and 1999. The Arizona state courts rejected Petitioner's direct and collateral challenges to his conviction. Petitioner then filed a federal habeas petition under 28 U.S.C. § 2254, arguing that he had received ineffective assistance of counsel. After an evidentiary hearing, the district court denied the petition. We reverse.
FACTUAL AND PROCEDURAL HISTORY
Between 1996 and 2002, Vega was represented by three different lawyers in connection with the underlying charges against him. The first lawyer represented him on federal charges, which were dismissed
on jurisdictional grounds. The second lawyer represented him on state charges, which the prosecutor ultimately chose not to pursue. State charges were brought for a third time following a new set of allegations by the victim, and yet a third lawyer represented Vega at trial. After two mistrials, one of which was caused by the third lawyer's absence, Vega was convicted in 2002. He was sentenced to twenty-eight years in prison.
After Vega's conviction, his trial lawyer learned that the victim had recanted her allegations to her priest (" Father Dan" ). Counsel then filed a motion to vacate, and during an evidentiary hearing Father Dan's testimony was presented to the trial judge for the first time. Because Vega himself, as well as his two prior counsel were aware of the Father Dan recantation, the trial judge concluded that Father Dan's testimony was not " newly discovered evidence" pursuant to Ariz. R.Crim. P. 24.2(a)(2), and, therefore, the trial judge denied the motion to vacate.
On direct appeal, Vega argued that the trial court had erred by denying both his motion for judgment of acquittal and his motion for a new trial. The Arizona Court of Appeals denied Vega's direct appeal on the merits, finding that the recantation to the priest was not " newly discovered evidence," and that there was not a " reasonable probability" that the priest's ...