                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              SEP 22 2010

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

ENRIQUE NAVA,                                    No. 08-55631

              Petitioner - Appellant,            D.C. No. 2:05-cv-08387-DSF-OP

  v.
                                                 MEMORANDUM*
JEANNE S. WOODFORD, Director,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    Dale S. Fischer, District Judge, Presiding

                      Argued and Submitted August 30, 2010
                              Pasadena, California

Before: KOZINSKI, Chief Judge, O’SCANNLAIN and GOULD, Circuit Judges.

       We conclude, following our independent review of Nava’s habeas petition to

the California Supreme Court, that Nava fairly presented and exhausted his Sixth

and Fourteenth Amendment claims, despite the state court’s procedural denial




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
citing In re Swain, 34 Cal. 2d 300 (1949), and People v. Duvall, 9 Cal. 4th 464,

474 (1995). See Kim v. Villalobos, 799 F.2d 1317, 1319–21 (9th Cir. 1986).

      Nava is entitled to an evidentiary hearing in federal court because he alleged

facts that, if true, would show that he was incompetent to plead guilty and is

entitled to habeas relief. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007);

Pinholster v. Ayers, 590 F.3d 651, 668 & n.7 (9th Cir. 2009) (en banc) (citing 28

U.S.C. § 2254(e)(2)), cert. granted sub nom. Cullen v. Pinholster, 130 S. Ct. 3410

(2010). Nava’s allegation that he attempted suicide and was injected with

psychotropic drugs hours before the plea hearing is not bald or inherently

incredible, see United States v. Howard, 381 F.3d 873, 879 (9th Cir. 2004), and

Nava alleges that defense counsel and the trial court were aware of some or all of

the facts surrounding his “medical situation.” The state court record does not

refute Nava’s factual allegations, see Landrigan, 550 U.S. at 474, so Nava is

entitled to an evidentiary hearing on his claims that defense counsel provided

ineffective assistance in allowing him to plead guilty and that the trial court should

have entertained a bona fide doubt as to his competence. See McMurtrey v. Ryan,

539 F.3d 1112, 1118–19 (9th Cir. 2008), Howard, 381 F.3d at 877.

      REVERSED and REMANDED.




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