                               NOT FOR PUBLICATION

                        UNITED STATES COURT OF APPEALS                     FILED
                               FOR THE NINTH CIRCUIT                        JAN 29 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

GABRIEL BARRIOS,                                   No. 10-55593

                  Petitioner - Appellant,          D.C. No. 2:08-cv-06411-GHK-
                                                   DTB
    v.

DEBRA DEXTER, Warden,                              MEMORANDUM *

                  Respondent - Appellee.,




                       Appeal from the United States District Court
                           for the Central District of California
                      George H. King, Chief District Judge, Presiding

                          Argued and Submitted January 11, 2013
                                   Pasadena, California


Before:           O’SCANNLAIN and W. FLETCHER, Circuit Judges, and
                  KORMAN, 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 Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
      Gabriel Barrios appeals the district court’s denial of his habeas petition

under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 2253 and we

affirm in part and remand in part for an evidentiary hearing.

      We address two claims from Barrios’s habeas petition: a claim that Barrios’s

guilty plea in state court was involuntary, and a claim that Barrios’s trial counsel

was ineffective in advising him to plead guilty. The parties agree that the

involuntariness claim is reviewed de novo because a discretionary summary denial

from the California Supreme Court is not a “decision on the merits” under the

Anti-terrorism and Effective Death Penalty Act (AEDPA). See Williams v.

Cavazos, 646 F.3d 626, 636 (9th Cir. 2011) cert. granted in part, 132 S. Ct. 1088

(2012). Barrios’s ineffective assistance claim, however, is governed by AEDPA.

      a.     Ineffective Assistance of Trial Counsel

      We review de novo the district court’s denial of a § 2254 petition. Gonzalez

v. Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008). Under § 2254(d) as modified by

AEDPA, petitions adjudicated on the merits by a state court may only be granted if

the state court adjudication results in a decision that: (1) is “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


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

“Clearly established federal law” refers to the law determined by the Supreme

Court at the time the state court rendered its decision. Lockyer v. Andrade, 538

U.S. 63, 71-72 (2003). We review the last reasoned state court decision, which for

the ineffective assistance claim is the Superior Court’s denial of Barrios’s habeas

petition. See Williams, 646 F.3d at 635.

      The Supreme Court established the governing standard for ineffective

assistance of counsel claims in Strickland v. Washington. Strickland requires a

petitioner to show both that counsel’s performance was deficient and that counsel’s

inadequacies prejudiced the petitioner. Strickland v. Washington, 455 U.S. 668,

687 (1984). In the guilty plea context the petitioner must show that “counsel’s

representation fell below an objective standard of reasonableness,” and that “there

is a reasonable probability that, but for counsel’s errors, [petitioner] would not

have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,

474 U.S. 52, 57-59 (1985).

      The Superior Court’s decision is not contrary to, or an unreasonable

application of, clearly established Supreme Court law. The Superior Court held

that Barrios could not establish prejudice because the extent of the evidence against

him, combined with his lack of options, defeated any argument that he would not


                                           3
have pleaded guilty in the absence of counsel’s advice. We have no basis on which

to second-guess the Superior Court; its analysis is not unreasonable under

Strickland. We affirm the district court’s denial on this ground.

      b.     Involuntary Guilty Plea

      A guilty plea “is valid only if done voluntarily, knowingly, and intelligently,

with sufficient awareness of the relevant circumstances and likely consequences.”

Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005). Counsel’s erroneous predictions

about the consequences of a guilty plea, in themselves, do not entitle a defendant to

relief. Chizen v. Hunter, 809 F.2d 560, 561 (9th Cir. 1986). But where the

defendant is misled as to what the actual effect of his plea will be, or inaccurately

told what his sentence “in fact [will] be,” he may be entitled to relief. See United

States v. Cortez, 973 F.2d 764, 765 (9th Cir. 1992); Chizen, 809 F.2d at 562.

      Barrios’s declarations provide the only evidence in the record of what

transpired between Barrios and trial counsel. Despite Barrios’s efforts, trial

counsel has refused to provide any information about his representation of Barrios

in this case. Barrios filed a motion for an evidentiary hearing on this issue below,

which the district court deferred pending this appeal. The state has conceded that

this claim is exhausted and that there is no state court decision on the merits. It is

thus evident that AEDPA deference is not appropriate. We apply the pre-AEDPA


                                           4
standing for an evidentiary hearing. Under pre-AEDPA law, a petitioner is entitled

to an evidentiary hearing where: “(1) he has alleged facts that, if proven, would

entitle him to habeas relief, and (2) he did not receive a full and fair opportunity to

develop those facts in a state court.” Williams v. Woodford, 384 F.3d 567, 586 (9th

Cir. 2004).

      The record is unclear as to what was said to Barrios by his counsel, and as to

Barrios’s credibility. No state or federal court has held a hearing on Barrios’s

claims, and so he has not had an opportunity to develop the facts. We remand to

the district court for an evidentiary hearing to determine what transpired between

Barrios and his trial counsel before he pleaded guilty in state court.




AFFIRMED in part and REMANDED in part.




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