                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JAN 29 2014

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

JAMES RAY BROWN,                                 No. 11-16131

              Petitioner - Appellant,            D.C. No. 1:10-cv-00219-LJO-DLB

  v.
                                                 MEMORANDUM*
JAMES A. YATES, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                      Argued and Submitted January 13, 2014
                            San Francisco, California

Before: GRABER and NGUYEN, Circuit Judges, and DEARIE, Senior District
Judge.**

       James Ray Brown petitions for relief under 28 U.S.C. § 2254, arguing that

the state court unreasonably applied Strickland v. Washington, 466 U.S. 668

(1984), in denying his petition for a writ of habeas corpus. He further argues that

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raymond J. Dearie, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
should this court remand his claim, he would be entitled to an evidentiary hearing.

For the following reasons, we vacate the judgment below and remand for further

proceedings.

      1.       The state court unreasonably applied Strickland in concluding that

Brown failed to establish ineffective assistance of counsel. Brown’s state habeas

petition and memorandum of law, offered under penalty of perjury, provide the

only evidence in the record pertaining to the legal advice offered by his trial

counsel regarding the state’s plea offer. According to Brown’s uncontroverted

statements, his attorney told him that “he could not be convicted at trial because

witnesses had recanted their incriminating statements,” and that “at worst, he

would get a hung jury.” As phrased, such legal advice cannot be fairly construed

as “reasonable tactical analysis,” as the state court concluded. Rather, absent a

declaration from Brown’s counsel or other evidence to the contrary, the only

inference available based on the record as it currently exists is that Brown’s

attorney erroneously informed him of a legal impossibility—that he “could not be




                                           2
convicted at trial.”1 Brown has thus rebutted the presumption of correctness

afforded to state court factual findings in habeas proceedings. See 28 U.S.C. §

2254(e)(1).

      We find Respondent’s remaining arguments similarly unavailing. The

alleged statements by Brown’s counsel do not “show[] equivocation as to whether

Brown would be found guilty.” Rather, the statements assure Brown that even in

the worst case scenario, he would avoid conviction. Moreover, the fact that the

trial court judge advised Brown that he could receive a sentence of life

imprisonment if convicted of all counts concerns the knowing and voluntary nature

of Brown’s rejection of the state’s plea offer and is irrelevant to whether Brown’s




      1
          The dissent challenges this conclusion as “not logically compatible” with
the alleged statement by Brown’s counsel that “at worst, [Brown] would get a hung
jury.” Dissent at 1. The dissent further finds that the state court reasonably
construed the “advice” offered by Brown’s counsel as merely “an overly optimistic
prediction.” Id. However, at other points in Brown’s state habeas petition, he
contends that “[c]ounsel was wrong to say [he] could not possibly be convicted,”
“[c]ounsel erroneously advised [him] a jury could not convict him because
[witnesses] had recanted their prior identifications of him,” and “[c]ounsel failed to
advise [him] he could still be convicted based solely on [w]itnesses’ prior
statements.” Thus, despite the alleged reference by Brown’s counsel to the
possibility of a hung jury, we see no ambiguity in what Brown purports to
claim—that his counsel erroneously told him that “he could not be convicted at
trial.”

                                          3
counsel provided deficient performance.2 See Lafler v. Cooper, 132 S. Ct. 1376,

1390 (2012). Finally, even if the district court were correct that “it would not have

been unreasonable for counsel to recommend proceeding to trial,” the legal advice

Brown’s counsel actually offered may nonetheless have been constitutionally

infirm.

      2.     The state court’s unreasonable application of Strickland

notwithstanding, the current state of the record does not permit a determination of

whether Brown is entitled to federal habeas relief. Regarding deficient

performance, Brown relies heavily on Lafler. However, in Lafler, the deficient

performance of the petitioner’s trial counsel had been conceded by all parties, and

thus the Court declined to address the issue. See id. at 1391. Regarding prejudice,

however, Brown may be able to demonstrate “a reasonable probability that . . . [he]

would have accepted the plea and the prosecution would not have withdrawn it . . .

, that the court would have accepted its terms, and that the conviction or sentence .

. . would have been less severe than [what was] imposed.” Id. at 1385.




      2
        Respondent also errs in relying on the comment by Brown’s attorney
during his client’s plea hearing that “[Brown] understands that potentially he could
go to prison on this case.” Read in context, it is clear that Brown’s attorney merely
indicated that Brown understood he could potentially go to prison if he accepted
the state’s plea deal.

                                          4
      We therefore vacate the judgment below and remand for further

development of the record. We note that the availability of an evidentiary hearing

under Townsend v. Sain, 372 U.S. 293 (1963), overruled on other grounds by

Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), appears unchanged following the

Supreme Court’s decision in Cullen v. Pinholster, 131 S. Ct. 1388 (2011). See

Hurles v. Ryan, 706 F.3d 1021, 1039 (9th Cir. 2013), petition for cert. filed, 82

U.S.L.W. 3009 (U.S. June 17, 2013) (No. 12-1472). Moreover, such a hearing

would not be barred by 28 U.S.C. § 2254(e)(2), as Brown requested and was

denied an evidentiary hearing during his state habeas proceedings. Id. (“A

petitioner who has previously sought and been denied an evidentiary hearing has

not failed to develop the factual basis of his claim.”).

      The judgment of the district court is VACATED and the case is

REMANDED for further proceedings. Costs on appeal are awarded to Appellant.




                                           5
                                                                                 FILED
Brown v. Yates, No. 11-16131                                                      JAN 29 2014

                                                                              MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, dissenting:                                             U.S. COURT OF APPEALS



      I respectfully dissent.

      1. The state court expressly considered Petitioner’s claim of ineffective

assistance of counsel on the merits, citing and applying Strickland v. Washington,

466 U.S. 668 (1984). We owe substantial deference to that court’s denial of

habeas relief. See Harrington v. Richter, 131 S. Ct. 770, 788 (2011) ("The

standards created by Strickland and [AEDPA] are both highly deferential, and

when the two apply in tandem, review is doubly so." (citations and internal

quotation marks omitted)).

      (a) The state court’s interpretation of the nature of counsel’s advice is not

unreasonable determination of the facts because counsel’s statement that "at worst,

[Petitioner] would get a hung jury" is not logically compatible with the majority’s

interpretation that counsel "informed [Petitioner] of a legal impossibility" of

conviction. Maj. at 2. Rather, the state court permissibly read Petitioner’s claim as

only an overly optimistic prediction.

      (b) The state court’s analysis of counsel’s advice is, similarly, not

unreasonable. The court permissibly held that advising Petitioner to reject the plea

offer represented a reasonable—if ultimately unfortunate—tactical choice because

the witnesses’ recantations significantly increased the odds of acquittal.
      2. Because the state court reasonably applied the law and rested its decision

on a reasonable determination of the facts, Cullen v. Pinholster, 131 S. Ct. 1388

(2011), precludes the remedy ordered by the majority. Our review "is limited to

the record that was before the state court that adjudicated the claim on the merits."

Id. at 1398.1




      1
        Moreover, this is not a case in which the facts could improve for Petitioner.
At best, his counsel would not contradict Petitioner’s version of the advice. At
worst, counsel would deny that he said any such thing. For that reason, cases such
as Hurles v. Ryan, 706 F.3d 1021 (9th Cir. 2013), petition for cert. filed, 82
U.S.L.W. 3009 (U.S. June 17, 2013) (No. 12-1472), are inapposite, because here
no evidentiary hearing is necessary to develop the record.

                                          2
