Enrique Nava v. Jeanne Woodford

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 22 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ENRIQUE NAVA, No. 08-55631
Petitioner - Appellant, D.C. No. 2:05-cv-08387-DSF-OP
v.
MEMORANDUM*
JEANNE S. WOODFORD, Director,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted August 30, 2010
Pasadena, California
Before: KOZINSKI, Chief Judge, O’SCANNLAIN and GOULD, Circuit Judges.
We conclude, following our independent review of Nava’s habeas petition to
the California Supreme Court, that Nava fairly presented and exhausted his Sixth
and Fourteenth Amendment claims, despite the state court’s procedural denial
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
citing In re Swain, 34 Cal. 2d 300 (1949), and People v. Duvall, 9 Cal. 4th 464,
474 (1995). See Kim v. Villalobos, 799 F.2d 1317, 1319–21 (9th Cir. 1986).
Nava is entitled to an evidentiary hearing in federal court because he alleged
facts that, if true, would show that he was incompetent to plead guilty and is
entitled to habeas relief. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007);
Pinholster v. Ayers, 590 F.3d 651, 668 & n.7 (9th Cir. 2009) (en banc) (citing 28
U.S.C. § 2254(e)(2)), cert. granted sub nom. Cullen v. Pinholster, 130 S. Ct. 3410(2010). Nava’s allegation that he attempted suicide and was injected with
psychotropic drugs hours before the plea hearing is not bald or inherently
incredible, see United States v. Howard, 381 F.3d 873, 879 (9th Cir. 2004), and
Nava alleges that defense counsel and the trial court were aware of some or all of
the facts surrounding his “medical situation.” The state court record does not
refute Nava’s factual allegations, see Landrigan, 550 U.S. at 474, so Nava is
entitled to an evidentiary hearing on his claims that defense counsel provided
ineffective assistance in allowing him to plead guilty and that the trial court should
have entertained a bona fide doubt as to his competence. See McMurtrey v. Ryan,
539 F.3d 1112, 1118–19 (9th Cir. 2008), Howard, 381 F.3d at 877.
REVERSED and REMANDED.
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