                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

LARRY GENE TILCOCK,                           No. 07-16184
            Petitioner-Appellant,
               v.                               D.C. No.
                                             CV-03-00037-ECR
MICHAEL BUDGE,
                                                OPINION
            Respondent-Appellee.
                                         
        Appeal from the United States District Court
                 for the District of Nevada
         Edward C. Reed, District Judge, Presiding

                    Argued and Submitted
           June 9, 2008—San Francisco, California

                     Filed August 15, 2008

      Before: J. Clifford Wallace and Susan P. Graber,
     Circuit Judges, and David A. Ezra,* District Judge.

                   Opinion by Judge Graber




  *The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.

                              10719
                     TILCOCK v. BUDGE                10721


                       COUNSEL

David Anthony and Anne R. Traum, Assistant Federal Public
Defenders, Las Vegas, Nevada, for the petitioner-appellant.
10722                   TILCOCK v. BUDGE
Conrad Hafen, Deputy Attorney General, and Thom Gover,
Senior Deputy Attorney General, Las Vegas, Nevada, for the
respondent-appellee.


                           OPINION

GRABER, Circuit Judge:

   A Nevada jury convicted Petitioner Larry Gene Tilcock of
burglary, felony failure to stop on signal of police, and being
a felon in possession of a firearm. The trial court sentenced
Petitioner under Nevada’s habitual criminal statute, Nev. Rev.
Stat. § 207.010, to three concurrent terms of life imprison-
ment without the possibility of parole. The Nevada Supreme
Court dismissed Petitioner’s direct appeal and affirmed the
trial court’s denial of his habeas petitions. The federal district
court denied Petitioner’s petition for a writ of habeas corpus.
We affirm in part, reverse in part, and remand for an evidenti-
ary hearing.

        FACTUAL AND PROCEDURAL HISTORY

   Because Petitioner filed his habeas petition after April 24,
1996, the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, gov-
erns. 28 U.S.C. § 2254; Woodford v. Garceau, 538 U.S. 202,
210 (2003). We presume that the state court’s findings of fact
are correct unless Petitioner rebuts that presumption with
clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis
v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). Petitioner has
not attempted to overcome the presumption with respect to
the underlying events. We therefore rely on the state court’s
recitation of the facts. As found by the Nevada state trial
court:

      On January 21, 1998, detectives from the Las
    Vegas Metropolitan Police Department, Repeat
                  TILCOCK v. BUDGE                  10723
Offender’s Program, initiated surveillance on [Peti-
tioner] at his residence. The detectives observed
[Petitioner] get into his car, and drive away from his
residence. [Petitioner] drove to an apartment com-
plex, got out of his vehicle, and looked into the win-
dows of several apartments. [Petitioner] left that
complex, and followed a car into a gated condomin-
ium complex.

   At the condominium complex, Sergeant Levins
saw [Petitioner] back his car into a parking spot, and
open the trunk. Sergeant Levins positioned himself
so that he could see [Petitioner] through a crack in
the block wall of the complex. A few moments later
Sergeant Levins observed [Petitioner] standing on a
step by a condominium window with a tire iron in
his hand. Then Sergeant Levins saw [Petitioner] turn
toward the condominium. [Petitioner] stepped out of
the Sergeant’s point of view, and Sergeant Levins
immediately heard the sound of breaking glass.
Next, Sergeant Levins heard glass being cleared
from the window frame. As Sergeant Levins was
about to give the signal for the team to move in to
arrest [Petitioner], [Petitioner] walked back to his
car, and Detective Johnson pulled into the complex.

  When [Petitioner] saw Detective Johnson, he
hopped in his car and began to drive away. Two
detectives were approaching [Petitioner] with their
guns drawn, and [Petitioner] accelerated his car, and
drove directly at one of the men, who had to jump
out of [Petitioner]’s way. Detective Sias pursued
[Petitioner] to [the] gate of the complex, which had
been blocked by several police cars. He parked three
or four feet behind [Petitioner]’s car.

  Detective Sias exited his vehicle and began yell-
ing at [Petitioner] that he was a police officer and
10724                 TILCOCK v. BUDGE
    that [Petitioner] should exit his vehicle. [Petitioner]
    was not exiting the vehicle as Detective Sias
    approached [Petitioner]’s car. Detective Sias
    observed [Petitioner] move his hand toward a base-
    ball cap in the passenger seat. The cap was covering
    an object that Detective Sias thought was a weapon.

       [Petitioner] quickly moved his hand away from
    the cap, glanced in the car mirrors, and put the car
    in reverse and accelerated backwards. He slammed
    his car into Detective Johnson’s vehicle. Detective
    Sias saw [Petitioner] make another movement to
    grab what he had earlier perceived to be a weapon.
    Because [Petitioner] was known to be armed and
    dangerous, Detective Sias, who feared for every-
    one’s safety, shot [Petitioner] in the arm, and
    watched [Petitioner] go down.

       A few seconds later, [Petitioner] sat up, acceler-
    ated, and sped out of the gate past the police cars.
    [Petitioner] was able to escape by driving at exces-
    sive speeds.

       Officer Tafoya received an emergency call to aid
    in the pursuit of a suspect. He turned on his lights
    and siren, and began to drive to the area described in
    the call. While he was driving on Reno Avenue,
    Officer Tafoya saw [Petitioner] driving directly
    toward him on the wrong side of the road. Officer
    Tafoya had to swerve out of [Petitioner]’s way and
    onto the curb to avoid being struck by [Petitioner].
    [Petitioner] kept driving, and Officer Tafoya made a
    U-turn to follow him.

       [Petitioner] made several illegal driving maneu-
    vers, endangering the lives of many more people.
    The chase finally ended when [Petitioner] crashed
    into a curb at a Circle K convenience store. While
                               TILCOCK v. BUDGE                          10725
       placing [Petitioner] under arrest, Officer Tafoya dis-
       covered a handgun in [Petitioner]’s pocket.

(Citations omitted.)

   The State of Nevada charged Petitioner with burglary, fel-
ony failure to stop on signal of police, being a felon in posses-
sion of a firearm, and two counts of attempted murder. A jury
convicted Petitioner of the burglary, felony failure to stop,
and felon in possession of a firearm charges, but acquitted
him of the attempted murder charges. The trial court sen-
tenced Petitioner as a habitual criminal, under Nevada
Revised Statutes section 207.010, to three consecutive terms
of life imprisonment without the possibility of parole.1
  1
   Under section 207.010:
      1. . . . [A] person convicted in [Nevada] of:
      ....
      (b)    Any felon[], who has previously been three times convicted,
             whether in this state or elsewhere, of any crime which under
             the laws of the situs of the crime or of this state would
             amount to a felony . . . is a habitual criminal and shall be
             punished for a category A felony by imprisonment in the
             state prison:
            (1)   For life without the possibility of parole;
            (2)   For life with the possibility of parole, with eligibility
                  for parole beginning when a minimum of 10 years has
                  been served; or
            (3)   For a definite term of 25 years, with eligibility for
                  parole beginning when a minimum of 10 years has been
                  served.
      2.    It is within the discretion of the prosecuting attorney whether
            to include a count under this section in any information or
            file a notice of habitual criminality if an indictment is found.
            The trial judge may, at his discretion, dismiss a count under
            this section which is included in any indictment or informa-
            tion.
10726                      TILCOCK v. BUDGE
   Petitioner appealed to the Nevada Supreme Court, which
affirmed the trial court’s judgment of conviction. Petitioner
then filed two habeas petitions and one motion for modifica-
tion of sentence with the state trial court, which the court
denied. The Nevada Supreme Court consolidated all three
post-conviction applications and affirmed the trial court. Peti-
tioner filed a habeas petition in federal district court, alleging
12 grounds for relief.
   Petitioner also filed in state trial court a motion to correct
an illegal sentence, which the court denied. The Nevada
Supreme Court affirmed the trial court, and Petitioner
amended his federal habeas petition to include this claim as
a thirteenth ground for relief.
   The district court denied Petitioner’s habeas petition. Peti-
tioner timely appeals.
                   STANDARDS OF REVIEW
   We review de novo a district court’s denial of a habeas
petition filed pursuant to 28 U.S.C. § 2254. Gill v. Ayers, 342
F.3d 911, 917 (9th Cir. 2003). Habeas relief is warranted only
if the state court’s decision was contrary to, or involved an
unreasonable application of, clearly established federal law as
determined by the Supreme Court, or resulted in an unreason-
able determination of facts in light of the evidence presented
in the state court proceedings. 28 U.S.C. § 2254(d)(1)-(2);
Williams v. Taylor, 529 U.S. 362, 407-09 (2000).
   We review for abuse of discretion a district court’s denial
of a request for an evidentiary hearing under AEDPA stan-
dards. Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir. 2005).
A district court abuses its discretion in denying a request for
an evidentiary hearing if a petitioner “has alleged facts that,
if proven, would entitle him to habeas relief, and . . . he did
not receive a full and fair opportunity to develop those facts.”2
Id. at 1167 (internal quotation marks omitted).
  2
    If the state courts did not afford a petitioner a full and fair hearing,
“then the state court’s decision was based on an unreasonable determina-
tion of the facts.” Earp, 431 F.3d at 1167.
                       TILCOCK v. BUDGE                   10727
                        DISCUSSION

  Petitioner raises a multitude of issues in his appeal, only
two of which warrant discussion. On all other issues, we agree
with the district court and affirm its rulings.

A.   Nevada’s habitual sentencing statute does not violate
     Apprendi.

   Petitioner argues that his sentence as a habitual offender
under Nevada’s habitual criminal statute, Nev. Rev. Stat.
§ 207.010, violates Apprendi v. New Jersey, 530 U.S. 466
(2000), “because a habitual sentence under [section] 207.010,
necessarily depends on judicial factfinding.” According to
Petitioner, “Nevada has a two-step process in which the court
determines (1) whether the State has proved the predicate
convictions, and (2) whether to dismiss or impose a habitual
sentence based on the record as a whole.” (Internal quotation
marks omitted.) We disagree.

   [1] Under Apprendi, 530 U.S. at 490, “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be sub-
mitted to a jury, and proved beyond a reasonable doubt.”
(Emphasis added.) Under section 207.010, if a person has
three qualifying felony convictions and is convicted of
another felony, the person “is a habitual criminal and shall be
punished” as one, Nev. Rev. Stat. § 207.010(1)(b) (emphases
added), unless a prosecutor or a judge exercises discretion to
be more lenient, id. § 207.010(2). Thus, under the terms of the
statute, the fact of Petitioner’s prior convictions alone
exposed Petitioner to the statutory maximum of life imprison-
ment without the possibility of parole. The statute does not
require or even authorize additional judicial factfinding to
determine whether a defendant is a habitual criminal. Instead,
“[t]he plain language of Nevada Revised Statutes
§ 207.010(2) grants the [trial] court discretion to dismiss a
count of habitual criminality, not the discretion to impose
10728                   TILCOCK v. BUDGE
such an adjudication based on factors other than prior convic-
tions.” O’Neill v. State, 153 P.3d 38, 40 (Nev.) (emphases
added), cert. denied, 128 S. Ct. 153 (2007). The opportunity
for leniency by the prosecutor or the judge is a judgment call,
not a factual finding. And that discretion can only reduce, not
increase, the statutorily imposed maximum punishment.

   [2] Petitioner argues that “O’Neill cannot undo in [Petition-
er]’s case the effects of the [Nevada] court’s prior case law
requiring judicial fact-finding as a necessary component of
every habitual criminal adjudication.” By its own reasoning,
though, O’Neill changed nothing under section 207.010. See
O’Neill, 153 P.3d at 43 (“[W]e disapprove any interpretation
of our prior case law as suggesting that facts other than prior
convictions must be found in order to adjudicate a defendant
a habitual criminal.”). And in Hughes v. State, 996 P.2d 890
(Nev. 2000) (per curiam), seven years before it issued
O’Neill, the Nevada Supreme Court emphasized that,
although section 207.010 renders a defendant with three qual-
ifying convictions a habitual criminal, the statute gives a sen-
tencing court only the discretion not to adjudicate the
defendant as a habitual criminal. See id. at 892-94 (“[T]he
decision to adjudicate an individual as a habitual criminal is
not an automatic one because the district court has broad dis-
cretion to dismiss a habitual criminal allegation. . . . [A]s long
as the record as a whole indicates that the sentencing court
was not operating under a misconception of the law regarding
the discretionary nature of a habitual criminal adjudication
and that the court exercised its discretion, the sentencing court
has met its obligation under Nevada law.”). Consequently,
both before and after O’Neill, under Nevada precedent, “a
[Nevada trial] court may consider facts such as a defendant’s
criminal history, mitigation evidence, victim impact state-
ments and the like in determining whether to dismiss such a
count.” O’Neill, 153 P.3d at 43. But “such facts do not oper-
ate to increase the punishment beyond the already established
statutory maximum and therefore need not be found by a jury
beyond a reasonable doubt.” Id.
                       TILCOCK v. BUDGE                  10729
   Petitioner’s reliance on Kaua v. Frank, 436 F.3d 1057 (9th
Cir. 2006), cert. denied, 127 S. Ct. 1233 (2007), is misplaced.
In Kaua, we held that the sentencing scheme under Hawaii
Revised Statutes section 706-662(4)(a), which provided for an
extended sentence if “the defendant [wa]s a multiple offender
whose criminal actions were so extensive that a sentence of
imprisonment for an extended term [wa]s necessary for pro-
tection of the public,” violated Apprendi. We so held because

       [t]he Hawaii Supreme Court ha[d] ruled that sec-
    tion 706-662(4) requires the sentencing court to con-
    duct a two-step process. First, the court must find
    that the defendant falls within the class of “multiple
    offenders” subject to an extended sentence. Under
    section 706-662(4)(a), this first step requires the
    court to find that the defendant is being sentenced
    for two or more felonies, or is already under sen-
    tence of imprisonment for a felony. Second, the
    court must determine whether an extended sentence
    is necessary for the protection of the public.

Kaua, 436 F.3d at 1059 (footnotes omitted). Under Hawaii
precedent, both steps must be followed for a defendant to
qualify for an extended sentence. See id. at 1060-61 (“In State
v. Okumura, [894 P.2d 80 (Haw. 1995),] the Hawaii Supreme
Court stated that both steps of the process ‘must be followed’
when the prosecution seeks an extended sentence.” (emphasis
omitted)).

   [3] In other words, under Hawaii law, a defendant qualifies
for an extended sentence based on both the fact of prior con-
victions and a judicial finding that an extended sentence is
necessary for public protection. By contrast, under both the
text of Nevada Revised Statutes section 207.010 and Nevada
precedent, the fact of prior convictions alone exposes a defen-
dant to the statutory maximum under Nevada’s habitual crimi-
nal statute. Consequently, section 207.010 does not violate
10730                   TILCOCK v. BUDGE
Apprendi, and the Nevada Supreme Court did not unreason-
ably apply Apprendi in rejecting Petitioner’s claim.

B.   Petitioner is entitled to an evidentiary hearing on his
     claim of ineffective assistance of trial counsel at
     sentencing.

   Petitioner argues that his trial counsel was ineffective at
sentencing because counsel failed to investigate the eight con-
victions listed in the prosecution’s Notice of Intent to Seek
Punishment as a Habitual Criminal and erroneously conceded
the eight convictions. Petitioner asserts that one conviction
did not exist, one conviction was too old to be considered for
sentencing purposes, one conviction was a misdemeanor, and
three of the convictions were duplicative because they arose
from the same transaction or occurrence as another convic-
tion. According to Petitioner, had his trial counsel provided
effective representation, the state trial court could have con-
sidered only two of the eight proffered convictions and, there-
fore, could not have found that Petitioner qualified as a
habitual criminal.

    In his state habeas petition and again in his federal petition,
Petitioner argued that his trial counsel was ineffective for fail-
ing to object to non-qualifying convictions that would have
rendered Petitioner ineligible to be sentenced as a habitual
criminal. In both petitions, Petitioner sought an evidentiary
hearing to develop this claim, which the state courts and the
federal district court denied. Petitioner thus has not received
a full and fair opportunity to develop his claim. See Earp, 431
F.3d at 1169 (“It is evident from the record that [the peti-
tioner] has never received an opportunity to develop his claim
. . . . The issue . . . was raised on habeas, and neither the state
court nor the district court allowed him an evidentiary hear-
ing.”). Consequently, Petitioner is entitled to an evidentiary
hearing to develop the facts of this claim if he has presented
a colorable claim for relief. Id. at 1167. Petitioner’s claim is
                         TILCOCK v. BUDGE                       10731
colorable if he has alleged specific facts that, if true, would
entitle him to relief. Id. at 1167 & n.4.

  [4] Under Strickland v. Washington, 466 U.S. 668, 687
(1984), an ineffective assistance claim “has two components.
First, the [petitioner] must show that counsel’s performance
was deficient. . . . Second, the [petitioner] must show that the
deficient performance prejudiced the defense.”

   [5] On the deficiency prong, “[b]ecause of the difficulties
inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance; that is, the
[petitioner] must overcome the presumption that, under the
circumstances, the challenged action might be considered
sound trial strategy.” Id. at 689 (internal quotation marks
omitted). Here, the facts as alleged by Petitioner overcome
that presumption. We can think of nothing strategic about fail-
ing to object at sentencing to categorically non-qualifying
convictions that would prevent a defendant from being eligi-
ble for sentencing under a habitual criminal statute. If the
prosecution alleges that a defendant is a habitual criminal on
the basis of non-qualifying convictions, the defendant has
everything to gain and nothing to lose by objecting.

   [6] On the prejudice prong, the facts alleged by Petitioner
“show that there is a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. If Petitioner’s trial counsel
had provided effective assistance by objecting to the proffered
non-qualifying convictions and thereby limited the trial
court’s consideration to two qualifying convictions, Petitioner
would have been ineligible for sentencing as a habitual crimi-
nal under section 207.010.3 In other words, the trial court
  3
   The government argues that any error was harmless because Petitioner
was impeached at trial with three prior felony convictions: a 1973 drug
conviction, a 1987 burglary conviction in Nevada, and a 1988 burglary
10732                      TILCOCK v. BUDGE
could not have sentenced Petitioner to three concurrent terms
of life imprisonment without the possibility of parole; instead,
Petitioner would have faced a statutory maximum sentence of
22 years’ imprisonment.

   [7] We hold that Petitioner is entitled to an evidentiary
hearing because the facts that he has alleged, if proved, may
demonstrate ineffective assistance of his trial counsel at sen-
tencing. We remand for an evidentiary hearing to give Peti-
tioner an opportunity to prove the facts supporting his claim.

  AFFIRMED in part, REVERSED in part, and
REMANDED for an evidentiary hearing. The parties shall
bear their own costs on appeal.




conviction in California. However, only the 1987 conviction in Nevada
was proffered by the prosecution as a qualifying conviction for Petition-
er’s sentence as a habitual criminal, and Petitioner does not challenge the
legitimacy of that conviction. Consequently, the prosecution’s use of the
other two convictions for impeachment purposes does not alter the color-
able nature of Petitioner’s claim that effective trial counsel would have
eliminated six of the prosecution’s eight proffered convictions for sentenc-
ing Petitioner as a habitual criminal.
