Tyrone Miles v. Michael Martel

Filing

FILED OPINION (PROCTER R. HUG, BETTY BINNS FLETCHER and RICHARD A. PAEZ) REVERSED AND REMANDED. Judge: BBF Authoring, FILED AND ENTERED JUDGMENT. [8340618]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TYRONE W. MILES,
Petitioner-Appellant,
v.
MICHAEL MARTEL, Warden,
Respondent-Appellee.





No. 10-15633
D.C. No.
1:08-cv-01002-JF
OPINION

Appeal from the United States District Court
for the Eastern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted February 15, 2012
Submission Vacated February 21, 2012
Resubmitted September 28, 2012
San Francisco, California
Filed September 28, 2012
Before: Procter Hug, Jr., Betty B. Fletcher, and
Richard A. Paez, Circuit Judges.
Opinion by Judge B. Fletcher

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COUNSEL
Michael S. Romano (argued), Susannah J. Karlson (Certified
Law Student), Mills Legal Clinic of Stanford Law School,
Stanford, California, for the petitioner-appellant.
Kamala D. Harris, Attorney General of California; Michael P.
Farrell, Senior Assistant Attorney General; Brian G. Smiley,
Supervising Deputy Attorney General; David Andrew
Eldridge (argued), Deputy Attorney General, Office of the
California Attorney General, Sacramento, California, for the
respondent-appellee.

OPINION
B. FLETCHER, Circuit Judge:
“[C]riminal justice today is for the most part a system of
pleas, not a system of trials. . . . [T]he right to adequate assistance of counsel cannot be defined or enforced without taking
account of the central role plea bargaining plays in securing
convictions and determining sentences.” Lafler v. Cooper,
132 S. Ct. 1376, 1388 (2012). Because of “[t]he reality [ ] that
plea bargains have become so central to the administration of
the criminal justice system . . . ,” Missouri v. Frye, 132 S. Ct.
1399, 1407 (2012), the Supreme Court recently recognized
that the Sixth Amendment right to counsel “extends to the
plea-bargaining process. During plea negotiations defendants
are entitled to the effective assistance of competent counsel.”
Lafler, 132 S. Ct. at 1384 (internal citations and quotation
marks omitted); see also Frye, 132 S. Ct. at 1407.
Petitioner-Appellant Tyrone Wayland Miles (“Miles”)
claims that he received ineffective assistance of counsel during plea-bargaining process. He alleges that counsel advised
him to reject a plea offer of six years’ imprisonment without

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alerting him that he was being charged with a crime that
would qualify as a “third strike” under California law. He
later entered an open plea and was sentenced to a three strikes
sentence of twenty-five years to life in prison. Without granting an evidentiary hearing, the California Supreme Court
summarily denied his state petition for a writ of habeas corpus. Following the United States Supreme Court’s recent
decisions in Lafler v. Cooper and Missouri v. Frye, we
reverse the district court’s denial of Miles’s petition for
habeas corpus and remand to the district court to hold an evidentiary hearing on Miles’s claims.
I
Miles grew up in Hanford, California. He is a Navy veteran
who deployed to the Persian Gulf three times, including during Operation Desert Storm. He married and had his first
child while in the Navy. During that time, however, Miles
began to exhibit signs of depression, anxiety, and substance
abuse. He received an honorable discharge and returned with
his family to Hanford, where his substance abuse and depression worsened. As a result of his drug addiction and erratic
behavior, Miles’s wife left him and returned with their child
to her family in Virginia.
In 1993, while Miles was under the influence of drugs and
alcohol, some of his friends asked him to act as a lookout
while they robbed a store. Five days later, Miles acted as a
lookout to a second robbery. The police caught Miles, and he
was charged for his involvement in the robberies together,
under the same case number. Miles pled guilty and served
three years in prison.
After his release from prison, Miles moved back home to
Hanford and lived next door to his parents. He worked various jobs and had two more children with his girlfriend. Miles
also remained addicted to methamphetamine and committed
several minor criminal offenses. Miles’s substance abuse

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worsened when his father died in 2003. Miles’s financial situation deteriorated when his paychecks began to bounce.
Miles lived in a neighborhood where people often cashed
fictitious checks at certain convenience stores. The stores
cooperated with this activity, so long as the person passing the
check paid a fee and repaid the store later for the fictitious
check. Miles also began to cash fictitious checks at these
stores, including three checks at King’s Gas and Deli Market
in November 2004. One of the checks was for $473.76. Miles
never repaid the owner.
In June 2005, a Hanford police officer arrested Miles for
passing fictitious checks. The police were able to identify
Miles’s thumb-print on the front of one of the fictitious
checks he had cashed at King’s. After being confronted with
this evidence, Miles admitted that he had passed the check
bearing his thumb-print, and admitted that he may have
passed other fictitious checks.
The State filed a complaint against Miles that alleged four
felony counts: one count of second degree burglary; two
counts of forgery occurring on the same day; and another forgery count occurring the following day. The complaint also
alleged that Miles had two prior serious felony convictions
that qualified as “strikes” under the California Three Strikes
Law, Cal. Penal Code §§ 667(b)-(i) and 1170.12. The two
prior felony convictions both had the same case number and
date of conviction.
Miles initially pled not guilty, and the Superior Court
appointed Laurence Meyer (“Meyer”) to represent him. The
court directed the clerk to send the complaint to Meyer and
directed the State to provide Meyer with all discovery documents and evidence. Miles and Meyer met for the first time
six days later while walking from the holding area to the pretrial conference and bail hearing. Miles and Meyer met again
before another preliminary hearing six days later. Miles never

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reached a plea agreement with the State while he was assisted
by Meyer. Later, after the State filed an information and formal charges against Miles, the Superior Court appointed
James Oliver as Miles’s trial counsel.
One month later, while Miles was represented by Oliver,
the State offered Miles a plea bargain on the record at another
pretrial conference. Under the bargain, in return for pleading
guilty to one count and admitting he had two prior strikes, the
State would dismiss the remainder of the counts and waive
prosecution if there were other outstanding fictitious checks.
Additionally, Miles would not be precluded from making a
motion at sentencing to have one of the prior strikes dismissed. The trial court explained the rights that Miles would
be waiving if he accepted the offer, and stated that although
Miles could ask the court to exercise discretion and waive one
of the prior strikes, “I’d have to tell you 25 to life is probably
what you’re going to get.” Miles accepted the plea offer.
Before sentencing, the State filed a probation report and
Miles submitted a personal letter. At sentencing, the trial
court declined to dismiss a prior strike, and sentenced Miles
to a “three strikes sentence” of 25 years to life imprisonment
for passing a fictitious $474 check. The California Court of
Appeal affirmed his sentence, People v. Miles, No. F049297,
2006 WL 2257434 (Cal. Ct. App. Aug. 8, 2006) (unpublished), and on October 18, 2006, the California Supreme
Court denied direct review.
On January 11, 2008, Miles filed a petition for a writ of
habeas corpus with the California Supreme Court, claiming
ineffective assistance of counsel during plea bargaining and
sentencing. Miles attached a declaration containing factual
allegations in support of his claim, and requested the remedy
of specific performance of the six-year plea offer.
In his declaration, Miles alleged that when he was charged
in the current case he had reason to believe he did not have

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two strikes. Miles alleged that when he met Meyer before the
pre-trial conference, Meyer relayed an offer for a “plea bargain of six years” but encouraged Miles to allow him to reject
the offer and negotiate further. Miles alleged that Meyer never
mentioned that he was exposed to a three strikes sentence of
25 years to life. Miles also alleged that Meyer did not inquire
about the facts of the case or Miles’s prior convictions. Miles
alleged that if Meyer had told him his actual sentencing exposure, he would have immediately accepted the six-year plea
offer. And Miles alleged that the next time he saw Meyer,
before the pretrial hearing six days later, Meyer informed him
that the six-year offer was “off the table,” and that he could
not “do anything about it. It’s out of my hands. I didn’t know
you had strikes.”
The California Supreme Court summarily denied Miles’s
petition on July 9, 2008, stating only: “The petition for a writ
of habeas corpus is denied.”
Two days later, on July 11, Miles filed a federal petition for
writ of habeas corpus, again claiming ineffective assistance of
counsel during plea negotiations and at sentencing. After
briefing, the district court denied the petition, ruling that
Miles was barred from relief on his pre-plea claim of ineffective assistance. The district court also rejected Miles’s claim
of ineffective assistance at sentencing because Miles did not
demonstrate prejudice.
II
Miles timely appealed. A motions panel of this court
granted Miles a certificate of appealability on his claim of
ineffective assistance during plea negotiations. See 28 U.S.C.
§ 2253(c).
Preliminarily, the State argues that habeas relief is barred
because Miles filed his petition outside of the one-year statute
of limitations for federal habeas review. See 28 U.S.C.

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§ 2244(d). The State argues that Miles’s state habeas petition
was not timely filed with the California Supreme Court, and
if the state petition was not timely it did not toll the federal
statute of limitations.1 Conversely, if Miles’s state petition
was timely filed with the California Supreme Court, his federal petition is timely.
The Supreme Court addressed California’s post-conviction
timeliness standards in Walker v. Martin, 131 S. Ct. 1120
(2011). As explained by the Court, California courts apply a
reasonableness standard to judge whether a state petition for
habeas corpus is timely filed. Id. at 1125. A petitioner must
file without “substantial delay,” as “measured from the time
the petitioner or counsel knew, or reasonably should have
known, of the information offered in support of the claim
. . . .” Id. (quoting In re Robbins, 959 P.2d 311, 317, 322 (Cal.
1998)). Non-capital petitioners have the burden to establish
one of the following in order to be timely: (1) absence of substantial delay; (2) good cause for the delay; or (3) that the
claim falls within an exception to the bar of untimeliness. Id.
Because petitioners may file for post-conviction relief “directly in the California Supreme Court, that court rules on a
staggering number of habeas petitions each year.” Id. at
1125-26 (citation omitted). Generally, most habeas rulings
issued by the California Supreme Court are summary denials.
Even so, the California Supreme Court does indicate when a
habeas petition has been rejected on timeliness grounds. “A
summary denial citing [In re] Clark[, 855 P.2d 729 (Cal.
1993)] and Robbins means that the petition is rejected as
untimely.” Id. at 1126. The California Supreme Court has discretion, however, to reach the merits of a state petition, even
if untimely.
1

The State raised this argument before the district court but the district
court proceeded to the merits.

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Here, the California Supreme Court rejected Miles’s petition for post-conviction relief without citing Clark or Robbins. Although this is persuasive evidence, the absence of an
express rejection of the application as untimely is not sufficient on its own. We must decide whether Miles filed his state
habeas petition “within what California would consider a
“reasonable time.” See Evans v. Chavis, 546 U.S. 189, 198
(2006).
Miles obtained post-conviction counsel within a month of
his conviction becoming final. Post-conviction counsel independently assessed and developed his claims, and Miles filed
the petition within twelve months. See In re Spears, 204 Cal.
Rptr. 333, 335-36 (Cal. Ct. App. 1984) (citing In re Hancock,
136 Cal. Rptr. 901, 901 (Cal. Ct. App. 1972) (concluding that
eighteen months is not a significant delay). The State’s reliance on Clark to argue that delay should be measured from
a point in the process earlier than the termination of direct
review is not persuasive. Clark is a death penalty case, and
California expects petitioners in capital cases to file for
habeas relief within 180 days after the due date for a reply
brief on direct appeal. Walker, 131 S. Ct. at 1125 n.1; cf. id.
at 1126 (measuring delay in a non-capital case by starting
from the termination of direct review). We hold that Miles
timely filed his state petition, that the state petition tolled the
federal statute of limitations, and that his federal petition is
therefore not barred by § 2244(d).
III
Turning to the merits of Miles’s habeas petition, he claims
that under Strickland v. Washington, 466 U.S. 668 (1984), he
was denied effective assistance of counsel during plea bargaining. Miles contends that deficient performance by counsel
caused him to forego the opportunity to plead guilty under
more favorable terms. He requests an evidentiary hearing so
that he can prove his allegations because the state court
denied him the opportunity to do so.

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A
We review the district court’s factual findings for clear
error and the ruling on habeas corpus de novo. Nunes v. Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003).
The statutory authority to issue habeas corpus relief for persons in state custody is defined by 28 U.S.C. § 2254, as
amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). Section 2254(d) states:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts
in light of the evidence presented in the
State court proceeding.
A state court’s decision is an “unreasonable application” of
clearly established federal law2 if “the state court correctly
2

“[C]learly established Federal law” includes only the Supreme Court’s
“applicable holdings.” See Carey v. Musladin, 549 U.S. 70, 74 (2006). But
the Supreme Court’s holding is not required to be precisely on point—a
state court can act contrary to, or can unreasonably apply clearly established Supreme Court law by “ignoring the fundamental principles established by [the Court’s] most relevant precedents.” Abdul-Kabir v.

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identifies the governing legal principle . . . but unreasonably
applies it to the facts of the particular case.” Bell v. Cone, 535
U.S. 685, 694 (2002). A state court’s fact-finding process can
only be found unreasonable under § 2254(d)(2) when we are
“satisfied that any appellate court to whom the defect is
pointed out would be unreasonable in holding that the state
court’s factfinding process was adequate.” Taylor v. Maddox,
366 F.3d 992, 1000 (9th Cir. 2004).
“Where a state court’s decision is unaccompanied by an
explanation, the habeas petitioner’s burden still must be met
by showing there was no reasonable basis for the state court
to deny relief.” Harrington v. Richter, 131 S. Ct. 770, 784
(2011). “[A] habeas court must determine what arguments or
theories . . . could have supported, the state court’s decision;
and then it must ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme]
Court.” Id. at 786.
B
1
In Lafler v. Cooper, the habeas petitioner shot at another
person several times, hitting her in her buttock, hip, and abdomen as she fled. 132 S. Ct. at 1383. He was charged under
state law with assault with intent to murder, among other
charges. Id. The prosecutor twice offered a plea bargain of 51
to 85 months’ imprisonment. In communication with the trial
Quarterman, 550 U.S. 233, 258 (2007). “Although the Supreme Court’s
decisions are the focus of the unreasonable-application inquiry, we may
look to Ninth Circuit case law as ‘persuasive authority for purposes of
determining whether a particular state court decision is an ‘unreasonable
application’ of Supreme Court law.’ ” Howard v. Clark, 608 F.3d 563, 568
(9th Cir. 2010) (quoting Duhaime v. Ducharme, 200 F.3d 597, 600 (9th
Cir. 2000)).

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court Lafler admitted guilt and expressed a willingness to
accept the offer. Id. He ultimately rejected the offer, however,
after his attorney convinced him that because the victim had
been shot below the waist the prosecution could not prove
intent to murder. Id. The case went to a jury trial, and after
trial Lafler was convicted on all counts and received a mandatory minimum sentence of 185 to 360 months in prison. Id.
Following direct review of his appeal by the Michigan state
courts, Lafler filed a petition for federal habeas relief, claiming ineffective assistance of counsel. Id. The district court
granted a conditional writ, ordering specific performance of
the original plea agreement as a remedy for the violation of
the right to counsel. Id. at 1384. The Sixth Circuit affirmed,
and the Supreme Court granted certiorari.
[1] The Supreme Court held that defendants have a Sixth
Amendment right to counsel “that extends to the pleabargaining process.” Id. Examining Lafler’s claims under
AEDPA, the court held that Strickland applies, as clearly
established law, to the rejection of a plea offer based on deficient advice. See id. at 1390. Applying Strickland, the Court
observed that the parties had stipulated that counsel’s performance was deficient. Regarding prejudice, the Court held that
Lafler had successfully demonstrated prejudice by showing
that “there is a reasonable probability he and the trial court
would have accepted the guilty plea. In addition, as a result
of not accepting the plea and being convicted at trial, [Lafler]
received a minimum sentence [over three] times greater than
he would have received under the plea.” Id. at 1391 (citation
omitted). This satisfied the Strickland test for ineffective
assistance during plea bargaining.
The Court vacated the Sixth Circuit’s remedy of specific
performance, and instead remanded the case with instructions
to order the State to reoffer the plea agreement, thus allowing
the state trial court to “exercise its discretion” in resentencing.
Id.

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2
In Missouri v. Frye, the defendant was charged with the
class D felony offense of driving with a revoked license. 132
S. Ct. at 1404. The maximum term of imprisonment for that
charge is four years. The prosecution sent two written plea
offers to Frye’s counsel, the second of which would have
reduced the charge to a misdemeanor and recommended a 90day sentence. Counsel let both offers expire without communicating anything to Frye. Before Frye’s preliminary hearing
he was again arrested for driving with a revoked license. Frye
subsequently entered a plea of guilty without a plea agreement. The trial judge sentenced him to three years in prison.
Id. at 1404-05.
Frye filed for postconviction relief in state court, alleging
that his counsel’s failure to inform him of the state’s plea
offer violated his right to effective assistance of counsel. The
trial court denied the motion, but the Missouri Court of
Appeals reversed and granted relief based on Strickland. The
state court ordered Frye’s guilty plea withdrawn so he could
proceed to trial or agree to plead guilty to any offer the prosecutor deemed appropriate. Id. at 1404-05. The Supreme Court
granted certiorari.
[2] The Court held that defendants are entitled to effective
counsel during plea bargaining, even where a plea offer is
rejected. Id. at 1405-08. Applying Strickland, the court held
that Frye’s counsel was ineffective because he failed to communicate the formal plea offer. Id. at 1408-09. The Court
described the test for prejudice as follows:
To show prejudice from ineffective assistance of
counsel where a plea offer has lapsed or been
rejected because of counsel’s deficient performance,
defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer
had they been afforded effective assistance of coun-

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sel. Defendants must also demonstrate a reasonable
probability the plea would have been entered without
the prosecution canceling it or the trial court refusing
to accept it, . . . [and] that the end result of the criminal process would have been more favorable . . . .
Id. at 1409. The Court remanded to the state court for it to
determine if Frye could show prejudice, especially in light of
his intervening arrest for the same offense while the current
charges and plea offer were pending. Id. at 1411.
C
This case fits squarely between Lafler and Frye. As in
Lafler, a habeas case subject to AEDPA like this one, “the
favorable plea offer was reported to the client but, on advice
of counsel, was rejected.” Lafler, 132 S. Ct. at 1383.3 And like
Frye, “after the [plea] offer lapsed the defendant still pleaded
guilty, but on more severe terms.” Id.4 Applying clearly estab3
In Lafler, the Court held that Strickland is the appropriate “clearly
established federal law” to apply to claims of ineffective assistance of
counsel in plea bargaining, even when the claim relates to a foregone plea.
See Lafler, 132 S. Ct. at 1384. By applying this holding in Lafler, a habeas
petition subject to AEDPA, the Court necessarily implied that this holding
applies to habeas petitioners whose cases are already final on direct
review; i.e. that the holding applies retroactively. This holding is also consistent with our prior circuit precedent that applied Strickland in the pleabargaining context. See, e.g., Nunes, 350 F.3d at 1051-53 (applying Strickland to a foregone plea bargain); Turner v. Calderon, 281 F.3d 851,
879-80 (9th Cir. 2002) (citing Strickland and Hill v. Lockhart, 474 U.S.
52 (1985)); United States v. Blaylock, 20 F.3d 1458, 1465-66 (9th Cir.
1994)
4
The district court, ruling without the benefit of Lafler and Frye,
rejected Miles’s habeas claim based on a lack of constitutional infirmity
in his subsequent guilty plea. But based on Lafler and Frye, neither a trial
free of constitutional flaw nor a voluntary and intelligent guilty plea
“wipes clean any deficient performance by defense counsel during plea
bargaining.” Lafler, 132 S. Ct. at 1388 (discussing a subsequent trial); see
Frye, 132 S. Ct. at 1405-08 (discussing the application of Strickland where
the defendant subsequently pleads guilty to less favorable terms).

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lished federal law, we hold that Miles has alleged facts establishing a colorable or prima facie case of ineffective
assistance of counsel. The state court unreasonably applied
Strickland when it summarily denied Miles’s claim.
1
Under Strickland v. Washington, a criminal defendant may
demonstrate ineffective assistance of counsel by establishing
both that counsel’s performance was deficient and that the
defendant was prejudiced by the deficiency. Strickland, 466
U.S. at 687. A habeas petitioner must show that the state court
unreasonably determined that the petitioner failed to show
both deficient performance and prejudice. Bell, 535 U.S. at
698-99; see Richter, 131 S. Ct. at 785 (holding that review of
the state court’s decision is deferential).
The test for deficient performance is “whether counsel’s
assistance was reasonable considering all the circumstances.”
Strickland, 466 U.S. at 688. “Because of the difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.” Id. at 689 (internal quotation marks and citation
omitted).
In asserting deficient performance, Miles alleges that his
pre-trial counsel, Meyer, never informed him that he was
exposed to a three strikes sentence. Miles further alleges that
Meyer did not even realize the sentencing exposure that Miles
faced when Meyer advised Miles that the six-year offer was
too high and that Miles should allow him to negotiate.
This is not a close case—according to Miles’s allegations,
Meyer performed deficiently. The complaint alleges two prior
felony convictions against Miles and provides the statutory

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reference to the three strikes law. The possibility that Miles
could be sentenced to at least 25 years to life is clear and
explicit on the face of the complaint. In spite of this obvious
risk, Miles alleges that Meyer told him that an offer of six
years was “too much,” and stated that he thought Miles could
get a better offer, never mentioning the possibility of a three
strikes sentence.
[3] Taking the allegations as true, we conclude defense
counsel’s failure to warn Miles was not only erroneous, but
egregious, considering the discrepancy between the plea offer
and Miles’s sentencing exposure. See Iaea v. Sunn, 800 F.2d
861, 865 (9th Cir. 1986) (“Though a mere inaccurate prediction, standing alone, would not constitute ineffective assistance, the gross mischaracterization of the likely outcome
presented in this case, combined with the erroneous advice on
the possible effects of going to trial, falls below the level of
competence required of defense attorneys.”) (citations omitted). Constitutionally effective counsel must competently
assess a defendant’s sentencing exposure and disclose the
exposure to the defendant. See Hill, 474 U.S., at 56-58; Turner v. Calderon, 281 F.3d 851, 881 (9th Cir. 2002) (“Counsel
cannot be required to accurately predict what the jury or court
might find, but he can be required to give the defendant the
tools he needs to make an intelligent decision.”); see also
Frye, 132 S. Ct. at 1408 (noting that defense counsel must
“promptly communicate and explain” plea offers under the
professional rules in numerous jurisdictions). Simply stated,
Meyer had a duty to understand that the complaint facially
alleges two prior strikes, and a duty to convey the possible
consequences to Miles. Meyer’s failure to read the complaint
and communicate its contents to Miles before advising him to
reject a plea offer falls below an objective standard of reasonableness under Strickland.
In fact, the State’s primary response to Miles’s claim is that
his allegations are implausible, and that it is “extremely
unlikely” that Meyer could possibly have performed so defi-

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ciently. In making this argument, the State basically concedes
that if Miles’s allegations are true he has stated a prima facie
claim of deficient performance. Nonetheless, the State argues
that the state court reasonably dismissed Miles’s petition for
relief on the basis of factual implausibility. We disagree with
both of the State’s assertions: Miles’s allegations are not factually implausible, and the state court would have been unreasonable to reject his petition on those grounds.
Upon review of a petition for post-conviction relief, the
California Supreme Court accepts the factual allegations of a
petition as true and determines whether the facts alleged
establish a prima facie entitlement to relief. Cal. R. Ct.
8.385(d). If the petitioner alleges facts showing a prima facie
case, “the court must issue an order to show cause,” and eventually the court may order an evidentiary hearing. Id. In limited circumstances, the California Supreme Court may reject
a petition on the basis that it is not credible. See Durdines v.
Superior Court, 90 Cal. Rptr. 2d 217, 222 n.9 (Cal. Ct. App.
1999) (discussing In re Alvernaz, 830 P.2d 747, 761 (Cal.
1992)).
The State argues that Miles’s allegations are unbelievable
given the following: the unlikelihood that Miles would not
ask what the sentencing exposure was before allowing his
attorney to negotiate; the fact that Miles never mentioned the
first offer to his trial attorney when negotiating the second
offer; and because it was unthinkable that Meyer would fail
to inspect the charging document.
In support, the State relies upon Perez v. Rosario, 459 F.3d
943 (9th Cir. 2006), where the court deferred to the state
court’s finding—without an evidentiary hearing—that the
petitioner’s claims completely lacked credibility. Rosario,
however, is easily distinguished from this case. In Rosario,
the petitioner submitted two declarations that not only contradicted each other, but also contradicted the defense theory and
alibi witnesses presented at trial. The petitioner also changed

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the allegations in his second declaration in order to respond
to arguments raised by the state in its response. Id. at 952.
None of those facts are present here. Miles has not submitted
a declaration containing any internal or external inconsistencies, much less any obvious inconsistencies or contradictions.
The absence of contradictory self-testimony is dispositive. We
hold that in the absence of any gross inconsistencies, Rosario
simply does not apply.
Turning to Miles’s declaration, we conclude that it is plausible. The particularized facts that he alleges are not presumptively incredible. In fact, it seems entirely believable that the
prosecutor would offer Miles a six-year sentence for pleading
guilty; a six-year offer is what Miles would have received for
a second-strike offense on a single felony count of passing a
fictitious check. See Cal. Penal Code § 476 (defining the passing of fictitious checks as forgery); Id. § 667(e)(1) (doubling
the term otherwise provided for a second strike). The prosecution eventually allowed Miles to plead guilty to a single felony count of passing a fictitious check, but as a third-strike
offense. Regarding the rest of the State’s arguments, whether
or not Meyer inspected the charging document before giving
advice, and whether or not Miles asked about his sentencing
exposure, are plausible facts and must be settled at an evidentiary hearing. Cf. Nunes, 350 F.3d at 1056 (holding that the
state court’s decision was objectively unreasonable because it
drew inferences and made credibility determinations when it
claimed to be determining prima facie sufficiency).
Next, the State argues that the state court reasonably
rejected Miles’s claim because Meyer would have potentially
been ineffective if he had advised Miles to plead guilty without verifying whether the prior strikes were valid. The State
contends that Meyer did not receive the complaint until the
morning that he first met Miles, and that he would have
needed more time to investigate. This argument misses the
point. If Miles’s allegations are true, Meyer’s failure was not
necessarily his recommendation to reject the State’s six-year

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offer, but his failure to understand Miles’s sentencing exposure and to disclose that exposure to Miles when advising him
on the plea offer.
Although the validity of Miles’s prior strikes may have
been uncertain at the time of the plea offer, there is no uncertainty as to what the State alleged in the complaint and no
uncertainty as to the sentencing exposure for a potential third
strike. The burden on counsel here is no more than to advise
that the charges expose the defendant to a presumptive sentence of 25 years to life in prison if he is convicted and the
strikes are valid.
Finally, the State relies upon Knowles v. Mirzayance, 556
U.S. 111, 122 (2009), to argue that Miles’s allegations do not
entitle him to relief under AEDPA because there is no prior
Supreme Court case that “squarely established” any specific
legal rule that defense counsel violated. We disagree. Counsel’s explanation of a plea offer must be sufficient to permit
the defendant to make a reasonably informed decision to
accept or reject the offer. Hill, 474 U.S. at 56-58 (applying
Strickland in the context of plea bargaining).5 The application
of Strickland in the plea bargaining process, and the requirement for counsel to provide advice “within the range of competence demanded of attorneys in criminal cases,” McMann v.
Richardson, 397 U.S. 759, 771 (1970), are settled law, and
have been previously applied in this circuit. See Nunes, 350
F.3d at 1051-53 (applying Hill and Strickland under AEDPA
5

Under prevailing ABA standards, which are highly relevant under
Strickland, 466 U.S. at 688, a lawyer must communicate with the client
about plea offers and advise the client candidly and competently so that
the client may make an informed decision. See ABA Standards for Criminal Justice, Prosecution and Defense Function 4-4.1(a) (3d ed. 1993)
(defense counsel is obligated to investigate “facts relevant to the merits of
the case and the penalty in the event of conviction”); Id. at 4-5.1(a) (“After
informing himself or herself fully on the facts and the law, defense counsel should advise the accused with complete candor concerning all aspects
of the case, including a candid estimate of the probable outcome.”).

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to hold that counsel must communicate a plea offer so that the
petitioner can make an informed decision); cf. Blaylock, 20
F.3d at 1465-66 (applying Strickland on direct review to hold
that counsel must communicate a plea offer to the defendant).
[4] Miles has stated a prima facie claim of deficient performance. We can think of no strategic reason for defense counsel to fail to apprise Miles of his sentencing exposure.
Moreover, we also cannot think of any other hypothetical reasons that the state court might have reasonably had to reject
Miles’s allegation of deficient performance. See Richter, 131
S. Ct. at 784.
2
Under the Strickland inquiry, the test for prejudice “focuses
on whether counsel’s constitutionally ineffective performance
affected the outcome of the plea process.” Hill, 474 U.S. at
59. As articulated in Lafler v. Cooper, to show prejudice in a
foregone plea bargain case
a defendant must show that but for the ineffective
advice of counsel there is a reasonable probability
that the plea offer would have been presented to the
court (i.e., that the defendant would have accepted
the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that
the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer’s
terms would have been less severe than under the
judgment and sentence that in fact were imposed.
132 S. Ct. at 1385.
[5] Miles’s allegations demonstrate a prima facie claim of
prejudice. From his allegations, the objective facts in the
record, and his eventual acceptance of a plea bargain, it is
undisputed that Miles consistently showed that he was not

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interested in contesting his guilt but rather wanted to negotiate
a plea. Further, the disparity between the plea offer and the
potential sentence he would be exposed to on a third strike is
strong evidence that his allegations are plausible. See Id. at
1391. And there are no facts in the record that suggest that the
prosecutor would have reneged on a completed plea bargain
or that the state court would not have accepted the plea bargain.
The State argues that the state court could have reasonably
based its summary rejection of Miles’s claim on his failure to
affirmatively prove prejudice. The State claims that Miles did
not demonstrate in state court that the prosecutor would have
maintained the six-year plea offer, and on those grounds the
state court decision rejecting Miles’s claim is reasonable. This
argument fails for two reasons.
First, the state petition inescapably implies that the prosecution would not have withdrawn the plea offer had Miles
accepted it. In his state petition, Miles extensively discusses
Strickland prejudice. Miles specifically discusses subjective
and objective evidence that demonstrate that he would have
accepted the offer, as well as several reasons why it was reasonably likely that the trial court would have approved the
plea agreement. All of these detailed arguments necessarily
allege that the prosecutor would have honored the bargain.6
Second, to state a prima facie claim of ineffective assis6

In fact, in Lafler, where the Supreme Court granted the petition for
habeas relief under Strickland, the petitioner did not allege in his habeas
petition that the prosecutor would not have withdrawn the plea, or even
that the state court would have accepted its terms. See Petition for Writ of
Habeas Corpus at 14-16, Cooper v. Lafler, No. 2:06-cv-11068 (E.D. Mich.
Mar. 13, 2006), ECF No. 1; cf. Cooper v. Lafler, 376 F. App’x 563,
571-73 (6th Cir. 2010) (granting relief without discussing whether the
prosecution would have withdrawn the agreement); Cooper v. Lafler, No.
2:06-cv-11068, 2009 WL 817712, at *7-9 (E.D. Mich. Mar. 26, 2009)
(same).

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tance during plea bargaining, the petitioner does not specifically need to allege that the prosecutor would have adhered to
the plea offer unless the surrounding circumstances plausibly
suggest otherwise. The burden to show that the prosecution
would have maintained the plea offer is, in part, a result of the
facts in Missouri v. Frye. There, the defendant was arrested
for the same conduct at issue in his plea proceedings during
the period when the prosecutor’s plea offer was still on the
table. The Court required him to demonstrate that it was reasonably likely that the prosecution would not have withdrawn
the offer and that the trial court would have accepted the
agreement in light of the intervening circumstance of his
arrest. Frye, 132 S. Ct. at 1404, 1410-11. In contrast, there are
no circumstances here that suggest the possibility that the
prosecutor might have withdrawn the offer had Miles
accepted it. The State does not even mention this possibility
in its opening brief, and there are no facts, rulings, or intervening criminal acts in the record that might have prompted
the prosecutor to reevaluate the bargain.
IV
Having established that the state court unreasonably
applied federal law when it summarily rejected Miles’s claim
of ineffective assistance of counsel, we turn to the issue of
whether Miles is entitled to an evidentiary hearing in federal
court. Such a hearing is necessary for Miles to vindicate his
claim and to be entitled to habeas relief.7
7

At the outset, we note that the Court explicitly envisioned the possibility of an evidentiary hearing in the course of demonstrating a claim of
ineffective assistance of counsel during plea bargaining. In Lafler, the
Court noted that an evidentiary hearing may sometimes be required to
show prejudice. See 132 S.Ct. 1389 (“In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown
a reasonable probability that but for counsel’s errors he would have
accepted the plea.”).

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[6] “For a federal habeas court to grant an evidentiary
hearing on an ineffective assistance claim, . . . a petitioner
must only show a ‘colorable claim of ineffective assistance.’ ”
Fairbank v. Ayers, 650 F.3d 1243, 1251 (9th Cir. 2011) (quoting Schriro v. Landrigan, 550 U.S. 465, 468 (2007)). “Although the standard required to obtain an evidentiary hearing
is less stringent than that required to prove a Strickland claim,
AEDPA deference still guides our decision.” Id. As the
Supreme Court explained:
In deciding whether to grant an evidentiary hearing,
a federal court must consider whether such a hearing
could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the
applicant to federal habeas relief. Because the deferential standards prescribed by § 2254 control
whether to grant habeas relief, a federal court must
take into account those standards in deciding
whether an evidentiary hearing is appropriate. It follows that if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a
district court is not required to hold an evidentiary
hearing.
Landrigan, 550 U.S. at 474 (citations and footnote omitted).
Miles has demonstrated a “colorable claim of ineffective
assistance” and the state court record does not refute his factual allegations. But we must contend with Cullen v. Pinholster, 131 S. Ct. 1388 (2011), which “changed the aperture for
consideration of new evidence” in federal habeas courts. Stokley v. Ryan, 659 F.3d 802, 809 (9th Cir. 2011). Pinholster
emphasized that, under AEDPA, the state courts are to bear
primary responsibility for adjudicating habeas claims brought
by state prisoners. In the Court’s words, AEDPA “demonstrate[d] Congress’ intent to channel prisoners’ claims first to
the state courts.” Pinholster, 131 S. Ct. at 1398-99. With that
intent in mind, the Court held that “review under § 2254(d)(1)

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is limited to the record that was before the state court that
adjudicated the claim on the merits.” Id.
[7] We conclude that we are permitted to remand for an
evidentiary hearing for the purpose of reviewing Miles’s
claim under § 2254(d). We reach this conclusion based on a
close reading of Pinholster and the various concurring and
dissenting opinions in that case. The majority opinion in Pinholster states that “[s]ection 2254(e)(2) continues to have
force where § 2254(d)(1) does not bar federal habeas relief.”
Id. Under Pinholster, then, § 2254(e)(2) permits a federal evidentiary hearing when: (1) a state court decision is contrary
to, or an unreasonable application of, clearly established federal law; and (2) the petitioner was diligent in presenting evidence in state court.
[8] Miles was diligent in state court. See Williams v. Taylor, 529 U.S. 420, 437 (2000) (“Diligence . . . require[s] in the
usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state
law.”). He alleged a prima facie case of ineffective assistance
and the state court summarily rejected his claims. Because the
state court rejected Miles’s claims because he did not make a
prima facie showing, the court did not order the filing of a
return and a traverse nor make a determination of whether an
evidentiary hearing was required. See Cal. R. Ct. 8.386 et.
seq.
[9] The California Supreme Court, in summarily rejecting
Miles’s prima facie claim of ineffective assistance, unreasonably applied clearly established federal law under
§ 2254(d)(1). While ordinarily diligence may require a petitioner to seek an evidentiary hearing in state court in the manner prescribed by state law, because Miles never reached the
stage of the state proceeding at which an evidentiary hearing
could be requested, he has not shown a lack of diligence.
Under § 2254(e)(2), AEDPA permits us to remand for an evidentiary hearing for purposes of resolving the remaining fac-

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tual disputes of Miles’s habeas claim because he was diligent
in state court.
The concurring opinions of Justice Alito and Justice Breyer
also support our conclusion. Justice Alito stated that he
thought an evidentiary hearing in federal court was proper
under § 2254(e)(2) when the petitioner makes a diligent effort
to produce evidence in state court. Pinholster, 131 S. Ct. at
1411 (Alito, J., concurring in part and concurring in the judgment). Further, he agreed with Justice Sotomayor’s dissent
that “when an evidentiary hearing is properly held in federal
court, review under 28 U.S.C. § 2254(d)(1) must take into
account the evidence admitted at that hearing.” Id.8
Likewise, Justice Breyer wrote:
If the state courts reject the claim, then a federal
habeas court may review that rejection on the basis
of the materials considered by the state court. If the
federal habeas court finds that the state-court decision fails (d)’s test (or if (d) does not apply), then an
(e) hearing may be needed. For example, if the statecourt rejection assumed the habeas petitioner’s facts
(deciding that, even if those facts were true, federal
law was not violated), then (after finding the state
court wrong on a (d) ground) an (e) hearing might be
needed to determine whether the facts alleged were
indeed true.
Id. at 1412 (Breyer, J., concurring in part and dissenting in
part). This is exactly what happened here. The state court
8

We also note that the majority opinion never responded to one of Justice Sotomayor’s statements in dissent: “I assume that the majority does
not intend to suggest that review is limited to the state-court record when
a petitioner’s inability to develop the facts supporting his claim was the
fault of the state court itself.” Pinholster, 131 S. Ct. at 1417 n.5 (Sotomayor, J., dissenting).

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unreasonably ruled that even if Miles’s allegations were true,
he failed to make a prima facie showing of ineffective assistance. Because the state court was wrong on a (d)(1) ground,
an (e) hearing is needed to determine whether Miles’s allegations are in fact true.9
Thus, while Pinholster is often read as creating a brightline rule that evidence from federal courts may never be considered in the course of § 2254(d)(1) review, the majority
opinion confirms that § 2254(e)(2) continues to have force
and permit federal courts to hold evidentiary hearings in limited circumstances. Moreover, the justices who joined the
judgment agree that where a diligent petitioner was unable to
present evidence in the state court because of the state court’s
error, the petitioner is not barred from an evidentiary hearing
in federal court.
[10] We hold that under the circumstances presented here,
remand for an evidentiary hearing is not only permitted but
required.
9

Alternatively, Miles is entitled to an evidentiary hearing because the
state fact-finding process was defective under § 2254(d)(2). See Pinholster, 131 S. Ct. at 1398-99 (limiting review under § 2254(d)(1)—but not
limiting review under § 2254(d)(2)—to the state record). In Nunes v.
Mueller we concluded that the state court unreasonably rejected the petitioner’s habeas claim under § 2254(d)(1) and (2) when the state court
rejected a petition alleging a prima facie claim of ineffective assistance of
counsel without affording any fact-finding. Nunes, 350 F.3d at 1054-55.
Here, like in Nunes, the state court claimed to take Miles’s petition at face
value and to review it for sufficiency. See Cal. R. Ct. 8.385(d). Reviewing
for sufficiency, the state court rejected a prima facie case of ineffective
assistance of counsel without any fact-finding. This is an “unreasonable
determination of the facts” under § 2254(d)(2) because “the state court
should have made a finding of fact but neglected to do so.” Taylor, 366
F.3d at 1000; see id. at 1001 (holding that the state court’s factual determinations are unreasonable where “the overlooked or ignored evidence [is]
highly probative and central to petitioner’s claim”).

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V
[11] Whether Miles’s allegations are true or not is not
known. His allegations are plausible, however, and if true
they state a claim for habeas relief. Accordingly, we reverse
the district court’s denial of Miles’s habeas petition, and
remand for an evidentiary hearing in district court.
REVERSED AND REMANDED FOR AN EVIDENTIARY HEARING