                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 14 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JOHNNY CORDOVA,                                  No. 09-16554

              Petitioner - Appellant,            D.C. No. 5:01-cv-20168-JF

  v.
                                                 MEMORANDUM *
C. A. TERHUNE; RODNEY HICKMAN,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeremy D. Fogel, District Judge, Presiding

                     Argued and Submitted September 1, 2010
                            San Francisco, California

Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.

       Petitioner Johnny Cordova appeals the district court’s denial of his post-

Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254 habeas corpus

petition following an evidentiary hearing on the issue of ineffective assistance of

counsel. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Cordova’s claim of ineffectiveness turns on his allegations that his counsel

failed to timely communicate to him a plea offer and its limited duration. In this

context, Cordova argues that the district court erred in relying on counsel’s

statement that his custom and practice was to communicate any offers fully and

accurately, even though counsel had no recollection of what he actually did in

Cordova’s case.

      The statement was admissible. See Fed. R. Evid. 406. Further, the district

court did not rely exclusively on counsel’s statement, but considered it along with

other admissible evidence (see below) to determine whether counsel was

ineffective.

      Cordova next challenges several of the district court’s other findings of fact,

in addition to the finding that counsel communicated the plea offer timely and

accurately. Cordova contends that the district court should have accepted his

detailed testimony over the testimony of the prosecutor and counsel, both of whom

had trouble remembering details about the relevant events, which had happened

more than a decade before the evidentiary hearing.

      The district court’s decision to credit the prosecutor’s and counsel’s

testimony over Cordova’s is a credibility determination entitled to deference

where, as here, there was no contradictory extrinsic evidence or internal


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inconsistency in their testimony. See Anderson v. City of Bessemer City, 470 U.S.

564, 575 (1985). In contrast, Cordova’s testimony was implausible and was

contradicted by the documentary evidence, including Cordova’s written

correspondence and recorded jailhouse statements to his wife and his girlfriend, as

well as his post-conviction letter to counsel. The district court’s findings are not

clearly erroneous. See Nunes v. Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003).

      Having failed to prove that counsel did not communicate the plea offer

timely and accurately, Cordova fails to show that counsel acted unreasonably under

prevailing professional standards. See Strickland v. Washington, 466 U.S. 668,

688 (1984). On this record, which reveals that Cordova repeatedly stated that the

plea offer was unacceptable to him, he also fails to prove prejudice. See id. at 692.

We therefore reject his ineffective assistance of counsel claim.

      AFFIRMED.




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