                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 26 2010

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




                             FOR THE NINTH CIRCUIT



 RIKI MUHAMMAD,                                  No. 07-17201

               Petitioner - Appellant,           D.C. No. CV-06-01036-SMM

   v.
                                                 MEMORANDUM *
 WILLIAM WHITE; et al.,

               Respondents - Appellees.



                     Appeal from the United States District Court
                              for the District of Arizona
                   Stephen M. McNamee, District Judge, Presiding

                             Submitted March 16, 2010 **

Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        William White is substituted for his predecessor, Dora Schriro, pursuant to

Fed. R. App. P. 43(c)(2).

        Arizona state prisoner Riki Muhammad appeals from the district court’s

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

AK/Research
judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

pursuant to 28 U.S.C. § 2253, and we vacate and remand.

       Muhammad contends that his trial counsel was ineffective for providing

erroneous advice regarding the degree of intent that the state was required to prove

at trial. Muhammad states that his reliance on this erroneous advice led him to

reject a plea offer and this fact, coupled with the significant sentencing disparity, is

sufficient to demonstrate prejudice. Muhammad alleges facts which, if proven,

would entitle him to relief and, because he was never given a full and fair hearing

in state court, he is entitled to a hearing in district court. We vacate the district

court’s denial of the habeas petition and remand for an evidentiary hearing to

address the merits of Muhammad’s ineffective assistance of counsel claim. See

Houston v. Schomig, 533 F.3d 1076, 1083 (9th Cir. 2008).

       VACATED; REMANDED FOR AN EVIDENTIARY HEARING.




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