                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 24 2016
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


GABRIEL BARRIOS,                                 No.   14-56972

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

RON RACKLEY, Warden,                             MEMORANDUM*

              Respondent-Appellee.


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

                      Argued and Submitted August 29, 2016
                              Pasadena, California

Before:      KOZINSKI and BYBEE, Circuit Judges, and WALTER,** District
             Judge.

      1.     The Fourteenth Amendment prohibits state courts from honoring

guilty pleas that are not made voluntarily or intelligently. See Boykin v. Alabama,

395 U.S. 238, 242–43 (1969). A plea is not intelligent when, among other things,

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Donald E. Walter, United States District Judge for the
Western District of Louisiana, sitting by designation.
                                                                                   page 2
“a defendant pleads guilty to a crime without having been informed of the crime’s

elements.” Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005).

      Barrios has successfully shown that his plea was not intelligent because he

never reviewed the elements of robbery with Young. Young admitted to that fact,

although the magistrate judge didn’t find his testimony credible. This is the only

credibility determination we see in the magistrate’s discussion of the intelligence

of the plea. Even assuming that the magistrate’s credibility determination was

correct in this respect, there is no persuasive evidence contradicting Barrios’s

averments. As acknowledged by the magistrate, Barrios provided a plausible

explanation for signing the plea form and responding in the affirmative at the plea

hearing. The magistrate’s speculations that Barrios knew the elements of robbery

because of his previous conviction, his contact with the public defender and

Young’s paralegals, and the fact that he was present at the preliminary hearing,

find no support in the record. And Barrios took the first opportunity he had, in the

Notice of Appeal and Request for Certificate of Probable Cause, to allege that his

plea was not intelligent because Young never reviewed the elements of robbery

with him.
                                                                               page 3
      2.     Because we find that Barrios’s plea was not intelligent, we need not

reach Barrios’s claim that his plea was not voluntary.


      3.     Barrios also asks us to expand the certificate of appealability and

reconsider his claim of ineffective assistance of counsel. We decline to do so.


      REVERSED and REMANDED with instructions to grant the writ,

conditioned on the state’s decision to try Barrios. The state has ninety days from

the district court’s grant of the writ to make that decision.
                                                                          FILED
Barrios v. Rackley, No. 14-56972
                                                                           OCT 24 2016
BYBEE, Circuit Judge, concurring in the judgment:                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


      While I agree with the majority’s conclusion, its analysis suffers from a

serious misunderstanding of the magistrate judge’s report and recommendation.

The magistrate judge correctly recognized that we must accept what Barrios said in

court at the time he pled guilty as true—and his later testimony contradicting those

statements as false—unless there is a good reason not to. See Doe v. Woodford,

508 F.3d 563, 571 (9th Cir. 2007) (“Solemn declarations in open court carry a

strong presumption of verity.”) (citation omitted); Chizen v. Hunter, 809 F.2d 560,

562 (9th Cir. 1986); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977)

(emphasizing that representations made during a change of plea hearing “constitute

a formidable barrier in any subsequent collateral proceedings”). The magistrate

judge then deemed Barrios’s proffered reason not good enough, stating that Barrios

“failed to overcome the strong presumption of verity.” In other words, the

magistrate judge held that Barrios’s testimony about Young’s failure to discuss the

elements of robbery with his client was not credible because Barrios contradicted

that testimony on the plea form and at the change of plea hearing.

      Ignoring that aspect of the magistrate judge’s reasoning, the majority

assumes that the magistrate judge made a negative credibility finding only as to

Barrios’s testimony about the alleged false promise. I would not make that
assumption. Instead, I would first hold that the magistrate judge clearly erred in

finding that Barrios was not induced to plead guilty. Only then would I conclude

that Barrios’s statements on the plead form and at the plea hearing are not

controlling, and that the guilty plea was both involuntary and unintelligent.

      A.     The Magistrate Judge Clearly Erred in Finding That Barrios Was Not
             Induced to Plead Guilty.

      At the evidentiary hearing, Barrios testified that he signed the plea form and

participated in the plea colloquy only because Young assured him that he would

receive a five-year sentence. The magistrate judge found Barrios’s

explanation“plausible” but not “entirely credible” due to Barrios’s “conduct after

he received a 45 years-to-life sentence.” None of the reasons the magistrate judge

provided to support his conclusion, however, justifies doubting Barrios’s veracity.

      First, the magistrate judge faulted Barrios for making “no mention to [the

trial judge] that he had been promised a different sentence” at the sentencing

hearing. But no adverse credibility inference can be drawn from Barrios’s conduct

because Barrios screamed in protest and was taken away from the courtroom

almost immediately after the trial court pronounced the sentence. He simply had

no time to explain to the court why its ruling was contrary to the alleged promise.




                                          2
         Second, the magistrate judge stated that “there is no evidence that petitioner

raised [the] issue” of the alleged promise with Young’s appearance attorney or

paralegal. True, but there is also no evidence that Barrios did not raise that issue

with those individuals. In fact, neither Barrios nor Young’s appearance attorney

was questioned on this specific point, and the paralegal did not even testify. It was

therefore wrong to assume that Barrios never discussed the alleged promise with

Young’s staff because those discussions, for all we know, may well have taken

place. Drawing a negative credibility inference from this gap in record is clear

error.

         Third, the magistrate judge pointed out that Barrios “did not take any action

during [the two months following his sentencing hearing] to notify the court that

his plea was invalid or otherwise follow-up with Young’s office.” No

impeachment weight, however, can be attributed to Barrios’s purported inaction

because Barrios was simply following the instructions of his legal team. Indeed,

Young’s paralegal had assured Barrios that the proper procedure for correcting the

sentence was to file the Notice of Appeal and Request for Certificate of Probable

Cause (the “Notice”). It was unreasonable to fault Barrios for failing to “notify the

court,” “follow-up with Young’s office,” or move to withdraw his plea during the

time he was waiting to receive the Notice.


                                             3
      Fourth, the magistrate judge focused on the substance of the Notice, which

stated that “[t]he plea was entered without any promise of leniency.” But it was

not Barrios but the legal team whose deficiencies led to Barrios’s predicament that

drafted the document. Barrios cannot be deemed untruthful simply because he

scrupulously followed the legal advice he was given without fully understanding

the contents of the Notice.

      Finally, the magistrate judge asserted that Barrios “did not raise this claim in

his direct appeal,” which, in the magistrate judge’s view, cast doubt on his

veracity. I disagree. To begin with, Barrios did raise his claim on direct appeal.

But more important still, it was not Barrios but his appellate counsel who decided

to wait until state habeas proceedings to assert Barrios’s claim. See People v.

Avena, 13 Cal. 4th 394, 418–19 (1996) (reiterating that claims based on facts

outside the record should be asserted on habeas and not direct appeal). Given that

Barrios informed his appellate counsel of the alleged promise, Barrios’s decision to

follow his counsel’s advice regarding appellate litigation strategy says nothing

about the truthfulness of his testimony at the evidentiary hearing.

      Accordingly, the magistrate judge’s reasons for finding Barrios not credible

do not hold up to scrutiny even under a deferential review of the record. I would

therefore accept as true that Young induced Barrios to plead guilty and conclude


                                          4
that Barrios successfully overcame the presumption of verity accorded to his

statements during the plea process. See Chizen, 809 F.2d at 563.

B.    Barrios’s Plea Was Neither Voluntary Nor Intelligent.

      Despite Barrios’s acknowledgment on the plea form and at the change of

plea hearing that the plea was voluntary, the evidence in the record shows that it

was not. As already explained, the magistrate judge offered no good reasons to

doubt testimony that Barrios agreed to plead guilty only because he thought he

would receive a five-year sentence. That testimony is supported by the statements

of Young’s appearance attorney, whom the magistrate judge found credible, and

Barrios’s conduct at the sentencing hearing. I would therefore hold that Barrios’s

plea was involuntary. See id.

      I also agree with the majority that the plea was unintelligent because Barrios

never reviewed the elements of robbery with his attorney. Unlike the majority,

however, I come to this conclusion only because I believe that Barrios’s statements

during the plea process can be disregarded due to Young’s false promise. If Young

had not made that promise, as the majority appears to assume, I would not hold

that Barrios’s plea was unintelligent.

      For all these reasons, I concur in only the court’s judgment.




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