                                                                               FILED
                            NOT FOR PUBLICATION                                 APR 03 2012

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




                            FOR THE NINTH CIRCUIT

ALLAN TRACY GILMORE,                              No. 11-55088

              Petitioner - Appellant,             D.C. No. 3:07-cv-01823-DMS-
                                                  JMA
  v.

DEBRA DEXTER, Warden and BILL                     MEMORANDUM *
LOCKYER, Attorney General,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                        Argued and submitted March 7, 2012
                                Pasadena, California

Before: THOMAS, WARDLAW, and BERZON, Circuit Judges.

       Allan Tracy Gilmore appeals the district court’s denial of his petition for a

writ of habeas corpus. We affirm. Because the parties are familiar with the factual

and procedural history of the case, we need not recount it here in detail.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                          I

      The California Court of Appeal’s adjudication of Gilmore’s claim resulted in

a decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(2);

Harrington v. Richter, 562 U.S. __, 131 S. Ct. 770, 783-84 (2011). The Court of

Appeal denied relief on Gilmore’s claim of ineffective assistance of counsel

because the court determined that Gilmore had failed to submit any evidence with

his claim and relied only on conclusory allegations. However, Gilmore did in fact

tender a substantial amount of evidence with his State petition, none of which was

mentioned by the Court of Appeal. Given the record actually before the State

Court of Appeal, its conclusion was unreasonable under § 2254(d)(2).

      Moreover, although Gilmore had diligently developed his ineffective

assistance of counsel claim in the State court proceedings, the Court of Appeal’s

unreasonable evaluation of the facts caused it to reject Gilmore’s request for an

evidentiary hearing. Because Gilmore demonstrated the necessary diligence by

requesting an evidentiary hearing before the state post-conviction relief court, 28

U.S.C. § 2254(e)(2) did not bar the federal court from ordering an evidentiary

hearing. See James v. Ryan, ___ F.3d ___, 2012 WL 639292, at *21 (9th Cir.




                                          2
2012). The federal district court was therefore justified in ordering a full

evidentiary hearing on Gilmore’s ineffective assistance of counsel claim

      After hearing extensive testimony, the magistrate judge resolved the

credibility issues in favor of Gilmore’s counsel and against Gilmore. The

magistrate judge concluded that Gilmore’s attorney had relied upon Gilmore’s

representations as to his juvenile criminal history and the prosecutor’s

representation that she was unaware of any substantial juvenile criminal history.

Given all of the circumstances, including the temporal exigencies surrounding the

plea negotiations, the magistrate judge concluded that Gilmore had not overcome

the “strong presumption” that defense counsel’s conduct fell “within the wide

range of reasonable professional assistance.” Strickland v. Washington, 466 U.S.

668, 689 (1984); see also Premo v. Moore, 562 U.S. __ , 131 S. Ct. 733, 741-42

(2011).

      On a close review of the record, we see no reversible error in the district

court’s decision to adopt the magistrate judge’s determination that Gilmore’s

ineffective assistance of counsel claim should fail. We also conclude that the

district court did not abuse its discretion in declining to admit evidence of

counsel’s interactions with previous clients.




                                           3
                                          II

      The district court did not err in determining that Gilmore’s plea was

knowing and voluntary. The State trial judge and Gilmore engaged in a thorough

plea colloquy. The trial judge repeatedly informed Gilmore about the maximum

possible sentence he was facing by pleading guilty and, under oath, Gilmore

repeatedly stated that he understood the terms of his plea agreement. Gilmore

further represented that he was entering into his plea “freely and voluntarily,” and

the State court so found. In the collateral proceeding now before us, Gilmore’s

representations and the trial judge’s findings constitute a “formidable barrier” to

relief that Gilmore does not overcome. Blackledge v. Allison, 431 U.S. 63, 73-74

(1977). The fact that Gilmore received a greater sentence than he hoped he would

does not render his plea unknowing or involuntary. Brady v. United States, 397

U.S. 742, 757-58 (1970).

      AFFIRMED.




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