                           NOT FOR PUBLICATION                           FILED
                                                                          JUL 15 2015
                    UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT


JESSICA HOLMES,                                 No. 14-15530

             Petitioner-Appellant,              D.C. No. 2:11-cv-02710-JKS

     v.
                                                MEMORANDUM*
DEBORAH JOHNSON,

             Respondent-Appellee.


                  Appeal from the United States District Court
                      for the Eastern District of California
               James K. Singleton, Senior District Judge, Presiding

                       Argued and Submitted June 11, 2015
                            San Francisco, California

Before: CHRISTEN and WATFORD, Circuit Judges, and ROTHSTEIN, Senior
District Judge.**




 *
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
       The Honorable Barbara Jacobs Rothstein, Senior District Judge for the U.S.
District Court for the Western District of Washington, sitting by designation.
      Petitioner Jessica Holmes, a state prisoner serving a life-without-possibility-

of-parole sentence, appeals the U.S. District Court for the Eastern District of

California’s order denying her habeas corpus petition.1 We have jurisdiction over

this matter under 28 U.S.C. § 2253.

      This Court may grant relief on a “claim that was adjudicated on the merits”

in state court if the state court’s decision was: “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court;” or based on “an unreasonable determination of the facts in light

of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254 (d).

      A decision is contrary to federal law if the state court applies a rule that

contradicts controlling Supreme Court authority or “if the state court confronts a

set of facts that are materially indistinguishable from a decision” of the Court but

arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000). The

state court’s factual findings are presumed to be correct unless the petitioner rebuts

this presumption by clear and convincing evidence. Miller-El v. Cockrell, 537

U.S. 322, 340 (2003). However, a state court’s determination of the facts made

without an evidentiary hearing may create a “presumption of unreasonableness.”

See Perez v. Rosario, 459 F.3d 943, 950 (9th Cir. 2006).

      Petitioner presents two issues on appeal. First, Petitioner asserts that the

      1
        The parties are familiar with all relevant facts. Therefore, we need not set
out the facts here.
                                          2
state court’s ruling that she impliedly waived her right to silence and to an attorney

is contrary to well-established federal law. In demonstrating implicit waiver, the

prosecution bears the “heavy burden”2 of showing the waiver was: (1) “voluntary

in the sense that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception;” and (2) “made with a full awareness of both

the nature of the right being abandoned and the consequences of the decision to

abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986).

      Petitioner contends that she did not waive her Miranda rights because the

detectives did not give her enough time to invoke these rights. According to

Petitioner, a waiver cannot occur unless the interrogating officer waits a certain

period of time after he reads the Miranda warning and receives affirmation that the

defendant understands her rights before beginning the interrogation. Respondent

counters that no previous Supreme Court decision has inquired into the amount of

time between a Miranda warning and interrogation when examining waiver. See

Berghuis v. Thompkins, 560 U.S. 370, 388-89 (2010) (holding that “a suspect who

has received and understood the Miranda warnings, and has not invoked his

Miranda rights, waives the right to remain silent by making an uncoerced

statement to the police”). We agree with Respondent. Petitioner fails to provide

      2
        “This ‘heavy burden’ is not more than the burden to establish waiver by a
preponderance of the evidence.” Berghuis v. Thompkins, 560 U.S. 370, 384
(2010).

                                          3
any controlling Supreme Court authority for the proposition that no waiver can

occur in the circumstances presented here.

      Petitioner also argues that any waiver was involuntary. In determining

whether a waiver is voluntary and knowing, courts must consider the totality of the

circumstances, including: the defendant’s age, experience, education, background,

and intelligence; the length and duration of questioning; and evidence of deceit,

trickery, cajoling, or physical coercion. See Fare v. Michael C., 442 U.S. 707,

725-26 (1979); Miranda v. Arizona, 384 U.S. 436, 476 (1966).

      Petitioner concedes that the state court considered her age and the

circumstances of the interrogation. However, she argues that the court erred by

“fail[ing] to consider her lack of experience with law enforcement, her confusion

during questioning and … the duplicitous and overbearing manner in which the

questioning was conducted.” According to Petitioner, this failing was significant

because the detectives deceived her by describing the advisement as a

“technicality,” not informing her that she was a suspect, and stating that her

statements “can” be used against her. Respondent counters that the court

reasonably concluded that “[t]he detectives did not misrepresent the significance of

Holmes’s rights.” Respondent further argues that well-established federal law does

not require detectives to say “will;” the phrase “can” is sufficient. See Dickerson v.

United States, 530 U.S. 428, 435 (2000) (“anything he says can be used against


                                          4
him in a court of law”). We agree with Respondent; the state court’s finding of

voluntary waiver is supported by the record and does not violate well-established

federal law. Accordingly, Petitioner is not entitled to relief on her Miranda claim.

      Second, Petitioner asserts that she is entitled to an evidentiary hearing

regarding her claim that she suffered ineffective assistance of counsel in the course

of plea negotiations.

      Respondent counters that a hearing is unnecessary. According to

Respondent, Petitioner is ineligible for relief because her ineffective assistance

claim relies on a “new rule.” Before a state prisoner may upset her state conviction

or sentence on federal collateral review, she must demonstrate that the court-made

rule of which she seeks the benefit is not “new.” Teague v. Lane, 489 U.S. 288,

304-05 (1989). A holding announces a new rule if “it breaks new ground or

imposes a new obligation” on the government, or if “the result was not dictated by

precedent existing at the time the defendant's conviction became final.” Id. at 301.

Conversely, a holding does not “announce a new rule, [when] it ‘[is] merely an

application of the principle that governed’” a prior decision to a different set of

facts. Id. at 307 (quoting Yates v. Aiken, 484 U.S. 211, 217-18 (1988)).

      Petitioner’s claim relies on the Supreme Court’s rulings in Frye and Lafler,

which held that the right to effective assistance extends to the consideration of plea

bargains. See Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012) (failure to


                                           5
communicate content of plea offer gives rise to ineffective assistance claim); Lafler

v. Cooper, 132 S. Ct. 1376, 1384 (2012) (improper advice to reject plea).

Respondent asserts that these holdings set out a new rule because neither case

began with a general application of the familiar Strickland analysis. Instead, the

Supreme Court’s opinions began by explaining whether the right to counsel

includes the consideration of plea offers.3 Petitioner counters that, even though

Frye and Lafler explained the scope of the right to effective assistance of counsel,

both cases merely applied the familiar Strickland analysis to a new set of facts and,

therefore, did not break new ground.

      We agree with Petitioner. Neither case set forth a new rule for the purposes

of Teague. See Frye, 132 S. Ct. at 1409 (“[t]his application of Strickland to the

instances of an uncommunicated, lapsed plea does nothing to alter the standard laid

out in Hill”); Lafler, 132 S. Ct. at 1384 (the “question for this Court is how to

apply Strickland's prejudice test where ineffective assistance results in a rejection

      3
         Respondent further contends the Court’s approach in these cases mirrored
that used in another case that did announce a new rule—Padilla v. Kentucky, 559
U.S. 356 (2010). Respondent finds it significant that, like in Padilla, the opinions
in Frye and Lafler do not begin with a general application of Strickland, but rather
discuss the scope of the right. Implicit in this argument is the notion that a case that
fails to begin with a general application of established law is necessarily new.
Justice Kennedy has explained in concurrence that “[w]here the beginning point”
of the analysis is a rule of “general application, a rule designed for the specific
purpose of evaluating a myriad of factual contexts, it will be the infrequent case
that yields a result so novel that it forges a new rule, one not dictated by
precedent.” Wright v. West, 505 U.S. 277, 309 (1992) (concurring in judgment).
However, Respondent has not demonstrated that the inverse is true.
                                           6
of the plea offer and the defendant is convicted at the ensuing trial.”). In holding

that Frye and Lafler did not break new ground, we concur with the reasoning of

another Ninth Circuit panel employed in the context of a second or successive

motion:

      [N]either Frye nor Lafler . . . decided a new rule of constitutional
      law. The Supreme Court in both cases merely applied the Sixth
      Amendment right to effective assistance of counsel according to
      the test articulated in Strickland v. Washington, 466 U.S. 668,
      686 (1984), and established in the plea-bargaining context in Hill
      v. Lockhart, 474 U.S. 52, 106 (1985) . . . Because the Court in
      Frye and Lafler repeatedly noted its application of an established
      rule to the underlying facts, these cases did not break new ground
      or impose a new obligation on the State or Federal Government.

Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012).4

      Respondent further argues that Petitioner is not entitled to an evidentiary

hearing because her habeas petition did not set forth a colorable claim for relief.

Generally, where a habeas petitioner is unable to develop the factual basis of her

claim, “an evidentiary hearing is required if (1) the petitioner has shown her

entitlement to an evidentiary hearing pursuant to Townsend v. Sain, 372 U.S. 293,

313 (1963), and (2) the allegations, if true, would entitle [her] to relief.” Hurles v.

Ryan, 752 F.3d 768, 791 (9th Cir. 2014) cert. denied, 135 S. Ct. 710 (2014).

      Under Townsend, a federal district court must grant an evidentiary hearing in

      4
        We also join our sister circuits in this reasoning. See, e.g., Pagan-San
Miguel v. United States, 736 F.3d 44, 45 (1st Cir. 2013); In re Liddell, 722 F.3d
737, 738 (6th Cir. 2013); In re Graham, 714 F.3d 1181, 1183 (10th Cir. 2013);
Hare v. United States, 688 F.3d 878, 879 (7th Cir. 2012).
                                           7
the present situation: The state court resolved the merits of material factual

disputes without affording Petitioner a full and fair hearing or otherwise

developing the factual record. See Townsend, 372 U.S. at 313; see also Hurles,

752 F.3d at 791.

      The only remaining question is whether the ineffective assistance of counsel

allegations Petitioner presented in her initial habeas petition, if proven true, entitle

her to relief.5 To state a claim for ineffective assistance of counsel, a petitioner

must establish deficient performance and prejudice caused by this performance.

Strickland, 466 U.S. at 687-88.

      An attorney’s performance is deficient if it falls “below an objective

standard of reasonableness” judged “under prevailing professional norms.” Id.

Petitioner’s initial habeas petition alleged that her trial counsel advised her that the

sentence imposed under the plea—sixteen years to life in prison with the

possibility of parole—was functionally the same as the sentence imposed if she

were convicted—mandatory life in prison with no possibility of parole.

Unquestionably, this advice, if given, was incorrect. The life sentence following

conviction was not only mandatory but was also imposed without the possibility of




      5
        Ostensibly, the state court also based its decision on Petitioner’s “fail[ure]
to attach any reasonably available documentary evidence.” However, Respondent
did not properly raise any argument regarding procedural default.
                                            8
parole.6

      Respondent counters that, regardless of the advice Petitioner may have

received from counsel, the record shows that she was aware of the risks associated

with going to trial versus taking the plea deal. Respondent points to statements

made by the prosecutor in Petitioner’s presence regarding the danger of going to

trial and being “convicted of life without parole.” Petitioner counters that the

prosecutor’s comments could not have cured the effect of the improper advice

because they do not convey the mandatory nature of the sentence. Respondent

also cites Petitioner’s comments, which indicated that she had spoken with trial

counsel regarding the plea and thought she understood the offer. Petitioner

counters that her statements do not reveal the content of that advice and, therefore,

do not show that she properly understood the plea offer. We agree with Petitioner.

The record before the state court did not conclusively show that Petitioner

understood the advantages of the plea.

      Petitioner also contends that she demonstrated prejudice. Where a plea offer

is rejected based on erroneous advice, the petitioner must show prejudice in the

following way: (1) a “reasonable probability” that she would have accepted the


      6
        Petitioner also alleges that counsel’s strategy during trial amounted to
ineffective assistance of counsel because counsel had a flawed understanding of
the case. However, this claim, discussed for the first time in her Traverse, is
entirely new and unexhausted. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507
(9th Cir. 1994) (“a ground for relief is not properly raised in a Traverse”).
                                         9
plea offer; (2) that the plea would have been entered without the prosecutor

canceling it or the trial court refusing to accept it; and (3) that the offer was more

favorable than the sentence actually imposed. See Frye, 132 S. Ct. at 1409; Lafler,

132 S. Ct. at 1385-86. In her initial state petition, Petitioner stated that she had

originally planned to accept the plea but “decided to take her case to trial” because

of trial counsel’s advice. Respondent contends that Petitioner’s statement is

insufficient because she does not specifically allege that she would have taken the

plea offer “but for” the improper advice. We disagree. Petitioner, who was pro se

at the time she filed the petition, demonstrated a colorable claim for relief.

      Accordingly, we remand to the district court so that it may conduct an

evidentiary hearing regarding the ineffective assistance of counsel claim Petitioner

raised in her pro se petition in the California Superior Court, i.e. that counsel did

not inform her that she faced a mandatory life sentence without the possibility of

parole.

      Appellee shall bear costs on appeal.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.




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