FILED
NOT FOR PUBLICATION DEC 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOHNNY CORDOVA, No. 09-16554
Petitioner - Appellant, D.C. No. 5:01-cv-20168-JF
v.
MEMORANDUM *
C. A. TERHUNE; RODNEY HICKMAN,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted September 1, 2010
San Francisco, California
Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.
Petitioner Johnny Cordova appeals the district court’s denial of his post-
Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254 habeas corpus
petition following an evidentiary hearing on the issue of ineffective assistance of
counsel. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Cordova’s claim of ineffectiveness turns on his allegations that his counsel
failed to timely communicate to him a plea offer and its limited duration. In this
context, Cordova argues that the district court erred in relying on counsel’s
statement that his custom and practice was to communicate any offers fully and
accurately, even though counsel had no recollection of what he actually did in
Cordova’s case.
The statement was admissible. See Fed. R. Evid. 406. Further, the district
court did not rely exclusively on counsel’s statement, but considered it along with
other admissible evidence (see below) to determine whether counsel was
ineffective.
Cordova next challenges several of the district court’s other findings of fact,
in addition to the finding that counsel communicated the plea offer timely and
accurately. Cordova contends that the district court should have accepted his
detailed testimony over the testimony of the prosecutor and counsel, both of whom
had trouble remembering details about the relevant events, which had happened
more than a decade before the evidentiary hearing.
The district court’s decision to credit the prosecutor’s and counsel’s
testimony over Cordova’s is a credibility determination entitled to deference
where, as here, there was no contradictory extrinsic evidence or internal
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inconsistency in their testimony. See Anderson v. City of Bessemer City, 470 U.S.
564, 575 (1985). In contrast, Cordova’s testimony was implausible and was
contradicted by the documentary evidence, including Cordova’s written
correspondence and recorded jailhouse statements to his wife and his girlfriend, as
well as his post-conviction letter to counsel. The district court’s findings are not
clearly erroneous. See Nunes v. Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003).
Having failed to prove that counsel did not communicate the plea offer
timely and accurately, Cordova fails to show that counsel acted unreasonably under
prevailing professional standards. See Strickland v. Washington, 466 U.S. 668,
688 (1984). On this record, which reveals that Cordova repeatedly stated that the
plea offer was unacceptable to him, he also fails to prove prejudice. See id. at 692.
We therefore reject his ineffective assistance of counsel claim.
AFFIRMED.
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