FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBINO PEREZ, No. 04-15279
Petitioner-Appellant, D.C. No.
v.
CV-02-05237-WHA
TERRY ROSARIO, ORDER AND
Respondent-Appellee. AMENDED
OPINION
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted December 6, 2004
Submission Deferred December 8, 2005
Resubmitted May 22, 2006
San Francisco, California
Filed May 22, 2006
Amended July 13, 2006
Before: Diarmuid F. O’Scannlain, Robert E. Cowen,* and
Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain
*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
7773
PEREZ v. ROSARIO 7777
COUNSEL
Kent A. Russell, Russell and Russell, San Francisco, Califor-
nia, argued the cause for the petitioner-appellant and was on
the briefs.
Christopher W. Grove, Deputy Attorney General of the State
of California, San Francisco, California, argued the cause for
the respondent-appellee; Bill Lockyer, Attorney General of
the State of California, was on the brief for the respondent-
appellee.
ORDER
The opinion filed on May 22, 2006 is amended as follows:
Slip Op. 5555. Insert the following footnote after the final
paragraph in Part IV:
Because Perez requested an evidentiary hearing in
California state court, he would be entitled to an evi-
dentiary hearing on disputed facts if “(1) he has
alleged facts that, if proven, would entitle him to
relief, and (2) he did not receive a full and fair evi-
dentiary hearing in state court.” Horton v. Mayle,
408 F.3d 570, 582 n.6 (9th Cir. 2005). Perez cannot
satisfy the first prong of this test. His allegations are
incredible; thus he has not alleged facts that if
proven would entitle him to relief, but rather has
alleged facts that could not be proven at all.
No petition for rehearing or rehearing en banc has been
filed, and none will be entertained.
7778 PEREZ v. ROSARIO
OPINION
O’SCANNLAIN, Circuit Judge:
In this habeas corpus appeal, we must decide whether an
attorney’s alleged faulty advice to his criminal defendant cli-
ent during the plea bargaining process in state court consti-
tutes ineffective assistance of counsel.
I
In 1987 Albino Perez’s girlfriend left him for John Her-
nandez. Perez took a hammer to Hernandez and broke his arm
before he was pulled off.
A
Eight years later, Hernandez was driving his Honda Prelude
home from running an errand, sometime between 7:00 and
7:30 PM on April 16, 1995, when he observed a dark-colored
BMW stopped in the street. When he pulled forward to inves-
tigate, he saw Perez in the driver’s seat, wearing a blue-knit
cap. Perez then pulled out a black semi-automatic handgun.
Hernandez sped away while Perez fired several shots. Her-
nandez escaped unhurt but his car was riddled with bullet
holes.
The police searched the area and found ten-millimeter shell
casings and a ten-millimeter bullet. They went to Perez’s
house but were unable to find a BMW there, outside or in the
garage. Two days later, they returned with an arrest warrant
and found a dark-blue BMW parked in front, which they
towed because it would not start. The police also found a ten-
millimeter bullet and a blue knit cap in Perez’s room. Perez
was charged with assault with a deadly weapon.
Perez turned down a plea bargain offer and trial began in
September of 1996. John Hernandez testified as the prosecu-
PEREZ v. ROSARIO 7779
tion’s key witness. The prosecution also presented forensic
evidence of gun-shot residue in Perez’s BMW and had a bal-
listics expert testify that the markings on the bullet found in
Perez’s bedroom were similar to those found on the casings
at the scene of the shooting. Another expert witness testified
that he had examined the BMW and it could have been opera-
ble the night of the shooting.
In turn, Perez presented testimony that the BMW in his
possession was inoperable during the time of the shooting and
called a witness whose testimony provided circumstantial evi-
dence that two unknown Asian men were the real culprits.
The state court jury found Perez guilty of assault with a
deadly weapon and other crimes. The trial court eventually
found that Perez’s previous felonies qualified him for a three-
strikes sentence and sentenced him to a prison term of 47
years to life.
B
In March of 1997, counsel filed a motion for a new trial,
based on the testimony of Gilbert Hernandez that John Her-
nandez, his brother, had admitted that he was not really sure
who had shot at him. The trial court rejected the motion
because Gilbert, a felon, was not credible.
In October of 1997, counsel then filed a second motion for
a new trial, based on testimony from Monico Lopez giving
circumstantial evidence that Jose Villanueva was the real
shooter. This motion was also denied.
Perez changed attorneys and filed a third motion for a new
trial, which was also denied.
C
Perez then filed an appeal which was ultimately denied.
Simultaneously, he petitioned the California Court of Appeal
7780 PEREZ v. ROSARIO
for a state writ of habeas corpus, claiming ineffective assis-
tance of counsel on numerous grounds. He also submitted var-
ious supporting declarations. In one made in 1999, Perez gave
his own account (“the first declaration”). He claimed that Jose
Villanueva had come to him in prison before the trial and con-
fessed to the shooting but had made him promise not to tell
anyone. After the State of California responded that Perez’s
account did little to show ineffective assistance of counsel,
Perez submitted a second declaration. In that declaration
Perez added that he had told prior counsel about the Villa-
nueva confession and had planned on testifying about it but
prior counsel closed without calling him. Additional declara-
tions were submitted, including one from a man named Jim
Ford who said he accompanied Villanueva during his confes-
sion and corroborated the account in Perez’s first declaration.
Perez also sought but ultimately did not receive a declaration
from his prior counsel.
The California Court of Appeal found these declarations
incredible and denied Perez’s habeas petition, including his
request for an evidentiary hearing on the various ineffective
assistance claims. The Supreme Court of California summa-
rily denied Perez’s petition to it.
D
In due course Perez filed his petition for writ of habeas cor-
pus in the federal district court, which denied it. Perez’s
timely appeal is now here.
II
[1] As the primary basis for his ineffective assistance of
counsel claim, Perez avers that if his counsel had properly
advised him that he faced a life-sentence under California’s
three-strikes law, he would not have rejected the plea bargain.
Under the first prong of the ineffective assistance of counsel
test found in Strickland v. Washington, 466 U.S. 668 (1984),
PEREZ v. ROSARIO 7781
Perez must show that his prior counsel’s advice during the
plea bargaining process “fell below an objective standard of
reasonableness.” See id. at 688. In evaluating Perez’s claims
under this prong, we must indulge, and we must permit the
California state courts to indulge, “a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” See id. at 689.
[2] Under the second prong of the Strickland test Perez
must show that his prior counsel’s mistakes resulted in preju-
dice. Generally, there must be a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different.” Strickland, 466 U.S. at
694.
The record shows that, at a pre-trial hearing in July of
1995, the prosecutor mistakenly came to the conclusion that
one of Perez’s previous convictions did not count as a strike.1
The trial judge reinforced the error by agreeing with the pros-
ecutor. Based on that error, the prosecutor then offered a plea
bargain of fourteen years. In his 1999 declaration, Perez
stated that when he and prior counsel went aside immediately
thereafter to discuss the bargain, prior counsel failed to inform
him that the prosecutor and the judge were mistaken and that
Perez really faced a life sentence if convicted because the
conviction would be his third strike. Instead, Perez claimed,
prior counsel advised him to turn down the plea bargain. Prior
counsel felt that fourteen years was too long a sentence for a
conviction that was not a third strike. Perez stated that if prop-
erly advised that he faced a three-strikes life sentence, he
would have taken a few days to think the plea bargain over
and then would have accepted it.
The California state court had previously rejected this claim
on two grounds. First, it held that Perez’s uncorroborated
after-the-fact declaration was alone legally insufficient to
1
All parties agree that the prosecutor was wrong.
7782 PEREZ v. ROSARIO
establish that he would have accepted the plea bargain if
offered one.2 Second, it made a pair of factual findings to
which we must ordinarily defer: that prior counsel knew dur-
ing the preliminary hearing that this conviction could poten-
tially be Perez’s third strike, and that he had already formed
the strategic intention of challenging the validity of the prior
strikes, if the issue arose.
Here, the district court also made two relevant findings of
fact: that the prosecutor would have realized his mistake and
withdrawn the plea bargain offer while Perez was taking a
few days to think it over, and that the state trial judge would
have refused to accept the plea, since Perez would have
refused to admit guilt.
2
There appears to be some uncertainty in this circuit as to the objective
reasonableness of a state court’s holding that uncorroborated, after-the-
fact avowals are legally insufficient to establish that a petitioner would
have accepted a plea bargain. See, e.g., In re Alvernaz, 830 P.2d 747, 756
(Cal. 1992) (“[A] defendant’s self-serving statement—after trial, convic-
tion, and sentence—that with competent advice he or she would have
accepted a proffered plea bargain, is insufficient in and of itself to sustain
the defendant’s burden of proof as to prejudice, and must be corroborated
independently by objective evidence. A contrary holding would lead to an
unchecked flow of easily fabricated claims.”). On the one hand, Turner v.
Calderon, 281 F.3d 851 (9th Cir. 2002), made the comparable holding that
“Turner’s self-serving statement, made years later, that Mr. Ellery told
him that ‘this was not a death penalty case’ is insufficient to establish that
Turner was unaware of the potential of a death verdict.” Id. at 881; see
also United States v. Allen, 153 F.3d 1037, 1041 (9th Cir. 1998) (citing
Cuppett v. Duckworth, 8 F.3d 1132, 1139 (7th Cir. 1993) (en banc)
(“[S]elf-serving statements by a defendant that his conviction was consti-
tutionally infirm are insufficient to overcome the presumption of regular-
ity accorded state convictions.”)). On the other hand, Nunes v. Mueller,
350 F.3d 1045 (9th Cir. 2003), overrode a similar state court action,
though in the face of the dissent’s vigorous defense of Alvernaz, id. at
1057-60 (Graber, J., dissenting), the Nunes court explained that though it
thought the Alvernaz holding was probably not objectively reasonable, it
was not definitively ruling on the question, see id. at 1055 n.6. Here, we
do not reach the objective reasonableness issue.
PEREZ v. ROSARIO 7783
[3] Any of these four findings, if sustained, would be
enough to warrant denying Perez’s claim. Because Perez con-
tests these findings, see United States v. Howard, 381 F.3d
873, 879 (9th Cir. 2004) (reminding that evidentiary hearings
can be in order “once a petitioner asserts a more detailed
claim, about which there are controverted facts”), we will
instead consider the unusual legal question presented by this
case: whether Perez can validly claim ineffective assistance of
counsel when the legal mistake that allegedly denied him
effective assistance of counsel in the plea bargaining process
was the same mistake that led to his being offered a plea bar-
gain in the first place.
[4] We conclude that he cannot. Even if we construe the
contested facts in Perez’s favor, we are doubtful that it was
unreasonable, incompetent, or ineffective for prior counsel to
rely in the short-term on the agreement of both the prosecu-
tion and the judge that the legal situation was more favorable
to his client than he had supposed.
[5] We are also persuaded that Perez cannot demonstrate
prejudice in the unique circumstances of this case. To prove
prejudice in the normal case, a petitioner must only show that
but for counsel’s bad advice the outcome of the plea bargain-
ing would have been different. See Hill v. Lockhart, 474 U.S.
52, 56-59 (1985) (finding prejudice where counsel’s bad
advice caused petitioner to accept a plea bargain); Nunes v.
Mueller, 350 F.3d 1045, 1052-53 (9th Cir. 2003) (finding
prejudice where counsel’s bad advice caused petitioner to
reject a plea bargain). This is not the normal case: the plea
bargain offer was made only because of the prosecutor’s mis-
taken belief that Perez’s prior convictions were not strikes
under California’s three strikes law. Perez does not dispute
that the prosecution would not have offered the plea bargain
at all if it had not been operating under a mistake.
[6] Under these unique circumstances, a failure to capital-
ize on the plea bargain, though outcome determinative, may
7784 PEREZ v. ROSARIO
not satisfy the prejudice prong of the Strickland test. The
Supreme Court has identified “situations in which it would be
unjust to characterize the likelihood of a different outcome as
legitimate ‘prejudice.’ ” Williams v. Taylor, 529 U.S. 362,
391-92 (2000), referring to Lockhart v. Fretwell, 506 U.S. 364
(1993), which the Court characterized as a case in which “we
concluded that, given the overriding interest in fundamental
fairness, the likelihood of a different outcome attributable to
an incorrect interpretation of the law should be regarded as a
potential ‘windfall’ to the defendant rather than the legitimate
‘prejudice’ contemplated by our opinion in Strickland.” Wil-
liams, 529 U.S. at 392. In Lockhart, Fretwell’s lawyer had
failed to make an objection to the admission of certain evi-
dence when he could have under a then-prevailing Eighth Cir-
cuit precedent. 506 U.S. at 366-67. The Eighth Circuit later
realized that the precedent was incorrect and overruled it. Id.
at 368. The Supreme Court concluded that the lawyer’s failure
to capitalize on the Eighth Circuit’s mistake did not prejudice
Fretwell, because he had no inherent right to benefit from it.
Id. at 369-71.
[7] Like Fretwell, Perez is also claiming that his attorney
should have helped him capitalize on the prosecutor’s legal
error. Indeed, Perez’s case is even less meritorious. The mis-
taken interpretation of law from which Perez could have ben-
efitted did not have the dignity of a formal legal ruling, let
alone one from a federal court of appeals. The real possibility
that the prosecutor would have realized his mistake and
retracted the plea bargain before Perez was able to accept it
also makes this case even more compelling than Lockhart. It
should follow that because Perez has no intrinsic right to have
legal errors made in his behalf, in rejecting the plea bargain
Perez was simply not “deprived . . . of any substantive or pro-
cedural right to which the law entitled him.” Williams, 529
U.S. at 392-93. Since Perez was not entitled to a plea bargain
offer made on mistaken legal assumptions, it should follow
that any attorney ineffectiveness that led him to reject the plea
bargain did not prejudice him.
PEREZ v. ROSARIO 7785
[8] We have never specifically addressed whether a plea
bargain offer made on false legal assumptions would be con-
trolled by Lockhart, but we have relied on Lockhart in many
contexts. See, e.g., United States v. Recio, 371 F.3d 1093,
1109 (9th Cir. 2004) (denying an ineffective assistance of
counsel claim where counsel failed to object to a jury instruc-
tion that would have then been considered faulty but had since
been rehabilitated). However, prior counsel may have erred
during the plea bargaining process and regardless whether
prior counsel’s errors caused his client to turn down the plea
bargain, Perez did not suffer any prejudice.
III
Perez makes three other specific allegations of attorney
incompetence. He alleges that his prior counsel (1) failed to
interview and to call witnesses who could testify that Jose
Villanueva was the real shooter, (2) failed to introduce evi-
dence showing that Rick Adams, who lived in the neighbor-
hood, owned a dark-colored BMW which was loaned to
Villanueva at the time of the shooting, and (3) prevented him
from testifying that Jose Villanueva had confessed to the
shooting.
A
The common factual basis of these claims is found in
Perez’s two declarations, and in supporting declarations from
Jim Ford and Rick Adams. In his first declaration, made in
1999, Perez stated that in June of 1995 Jose Villanueva and
Jim Ford visited him in jail. Villanueva there (1) confessed
that he had done the shooting, (2) described meeting Monico
Lopez just prior to it, showing him the gun, and telling Lopez
that he, Villanueva, was going to “handle his business”, (3)
apparently revealed that he had been driving the dark-colored
BMW belonging to Rick Adams at the time, and (4) asked
Perez for a year’s silence. Perez stated that he promised the
year’s silence. Perez then stated “I told my lawyer . . . that I
7786 PEREZ v. ROSARIO
knew who the shooter was and that he had asked me for a
year. I also told [him] that I would testify to this if . . . Villa-
nueva did not come forward in time. I was willing to testify
after the year went by, and had I testified, I would have
brought this up. However, my [lawyer] never prepared me to
take the stand and never called me to testify . . . .” On the
basis of this last testimony, Perez explained that he was enti-
tled to relief because his prior counsel had failed to “obtain
[his] informed consent to waiving his right to testify in his
own defense.”
The State of California responded that Perez’s testimony
did not establish that he had told his counsel Villanueva’s
name, or the substance of his confession, or anything else that
would have plausibly required prior counsel to make any fur-
ther investigations, and that attorneys were not required to
obtain informed consent.
In his second declaration, made in 2000, Perez stated that
in June of 1996 Jose Villanueva came to visit Perez in jail
along with Jim Ford and confessed. Perez again stated that he
informed prior counsel that he knew the shooter but had
promised to wait a year. Perez then stated, for the first time,
that a few weeks later he found out Jose Villanueva had died,
at which time Perez had given his prior counsel full details of
the confession and asked to testify. Prior counsel allegedly
tried to dissuade him because prior counsel thought the testi-
mony would “ ‘upset the judge’ . . . who was [otherwise]
favorable because she was against the 3-strikes law.” Accord-
ing to his second declaration, Perez insisted on testifying and
prior counsel apparently assented. But at trial, prior counsel
rested without calling Perez to the stand. Perez was “shocked
and upset.” Eventually, Perez added, because of prior coun-
sel’s refusal to follow up on the Villanueva story, Perez
switched attorneys.
In Jim Ford’s supporting declaration, he stated that he had
read Perez’s first account of the Villanueva confession and
PEREZ v. ROSARIO 7787
that it was accurate. In Rick Adams’s supporting declaration,
he stated that he had lent his dark-colored BMW to Jose Vil-
lanueva on the day of the shooting.
B
Without holding an evidentiary hearing, the California
Court of Appeal rejected all three ineffective assistance
claims as not credible, especially as to the additional details
mentioned for the first time in Perez’s second declaration. The
California court found Perez’s counsel had not been told
about the Jose Villanueva confession and Perez had never
demanded that he be allowed to testify.
1
[9] These state court findings of fact are presumed correct
by 28 U.S.C. § 2254(e)(1), unless they can be rebutted by
clear and convincing evidence. See Taylor v. Maddox, 366
F.3d 992,1000 (9th Cir. 2004). Such evidence is not in the
record. The only evidence that Perez told his prior counsel
about the alleged Jose Villanueva episode, or that Perez
insisted on testifying, is Perez’s unsupported statement,
offered four years after the trial in response to a state habeas
filing which pointed out that Perez’s first version of the epi-
sode strongly implied that Perez had not told his prior counsel
about Jose Villanueva or insisted on testifying.
State court findings of fact are not presumed correct, how-
ever, by 28 U.S.C. § 2254(e)(1), where “there was an unrea-
sonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1); see Taylor v. Maddox, 366 F.3d at 1000. In
many circumstances, a state court’s determination of the facts
without an evidentiary hearing creates a presumption of
unreasonableness. Id. at 1001. We do not read Maddox or
AEDPA to require an evidentiary hearing in all circum-
stances.
7788 PEREZ v. ROSARIO
[10] Decisions as to the reasonableness of requiring an evi-
dentiary hearing must “appropriately accommodate concerns
of . . . judicial economy . . . .” Keeney v. Tamayo-Reyes, 504
U.S. 1, 8 (1992) (explaining the Court’s reasons for restricting
the circumstances in which an evidentiary hearing would be
required in district court). Such concern for judicial economy
underlies the statutes and precedents holding that evidentiary
hearings and similar judicial processes are unnecessary in the
unusual case where the allegations to be proven at the hearing
are extremely unlikely. In the typical formulations, they are
unnecessary where the allegations are said to be incredible in
light of the record, or, which is much the same thing, when
the record already before the court is said to establish a fact
conclusively. See, e.g., Davis v. Woodford, 384 F.3d 628, 644,
646-47 (9th Cir. 2004) (in a § 2254 case, holding that a dis-
trict court did not err in denying an evidentiary hearing to
establish petitioner’s incompetence during the state trial when
“we cannot glean evidence from the record to support actual
incompetence” and petitioner’s proffered evidence was
flimsy); Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000)
(affirming the district court’s denial of an evidentiary hearing
in a § 2254 case where the district court had allowed a year
of discovery, citing Cardwell v. Greene, 152 F.3d 331, 338-39
(4th Cir. 1998) (“We have long held that the need for an evi-
dentiary hearing may be obviated by . . . expansion of the
record”)).3 We are satisfied that state court fact determinations
3
These instances are representative of many others. See, e.g., 28 U.S.C.
§ 2255 (requiring federal district courts to consider collateral attacks on
federal sentences unless “the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief”); Blackledge
v. Allison, 431 U.S. 63, 76 (1977) (permitting summary dismissal of
habeas petitions from state prisoners where the claims in the petition are
“palpably incredible” or “patently frivolous or false” (citation omitted));
United States v. Howard, 381 F.3d 873, 879 (9th Cir. 2004) (“When a
§ 2255 petitioner’s claim of incompetence due to the ingestion of drugs is
conclusory or inherently incredible, a district court has the discretion to
dismiss the petition without a hearing.” (emphasis added)); United States
v. Angulo, 4 F.3d 843, 847 (9th Cir. 1993) (“An evidentiary hearing is not
PEREZ v. ROSARIO 7789
are reasonable without an evidentiary hearing, as here, where
the record conclusively establishes a fact or where petitioner’s
factual allegations are entirely without credibility. See Nunes
v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003) (acknowledg-
ing that “there may be instances where the state court can
determine without a hearing that a criminal defendant’s alle-
gations are entirely without credibility”). Where there is no
likelihood that an evidentiary hearing would have affected the
determination of the state court, its failure to hold one does
not make such determination unreasonable.
2
We review the record to see whether Perez’s account—that
Jose Villanueva confessed to him, and, especially, that Perez
then told his attorney and demanded to be put on the stand—
is so incredible that there is no likelihood that an evidentiary
hearing would have produced evidence affecting the state
court determination. At trial, Perez’s counsel did not attempt
to implicate Jose Villanueva, but did introduce evidence that
two other men committed the offense. Indeed, defense coun-
sel tried to show that Perez could not have committed the
crime and offered, in an attempt to put the blame elsewhere,
a witness who offered circumstantial evidence strongly impli-
cating two unknown Asian males. The witness testified that
on the evening in question, while he was walking near the
area where the shooting occurred, a BMW with two Asian
men, one of whom was wearing a knit cap, drove by. It was
followed by a Honda Prelude. Moments later, he heard gun-
shots from the direction the cars had driven.
mandated every time there is an allegation of jury misconduct or bias. . . .
the court must consider the content of the allegations, the seriousness of
the alleged misconduct or bias, and the credibility of the source.” (citation
omitted)); Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (in a
§ 2254 case, holding that “[a] petitioner is not entitled to an evidentiary
hearing . . . when his claims are . . . contentions that in the face of the
record are wholly incredible.”).
7790 PEREZ v. ROSARIO
After trial, the defense filed a motion for a new trial based
on Monico Lopez’s declaration implicating Jose Villanueva.
Again no mention was made of Jose Villanueva’s purported
confession to Perez, nor Jim Ford’s corroboration of that con-
fession. Perez does not explain why prior counsel would have
forgone corroborating Monico Lopez’s account with Perez’s
story at this point.
3
Nor did Perez’s new attorney mention the Villanueva con-
fession. In his third motion for a new trial, the new attorney
presented a variety of evidence to indicate that John Her-
nandez was uncertain about the identity of the shooter, along
with a statement from Monico Lopez again suggesting that
the shooter was really Jose Villanueva. Yet the new attorney
also did not offer into evidence Perez’s statement that Villa-
nueva confessed to him, or Jim Ford’s corroboration, or Rick
Adams’s statement that he had loaned a dark-colored BMW
to Villanueva. All this after Perez had just switched attorneys
because his prior counsel had dropped the ball on Villanueva.
We must then either believe that both Perez’s prior counsel
and his new attorney were sublimely incompetent, and that
Perez did nothing to protest, or we must inevitably conclude
that Perez’s account is not credible.
The Perez declarations were made well after the events
they purport to describe, as much as five years. They describe
rather outrageous conduct on the part of prior counsel, for the
first time. All of the testimony implicating Jose Villanueva
dates to well after his death in 1995 or 1996. In his first decla-
ration, Perez has Villanueva not only confessing to the shoot-
ing but going out of his way to mention his encounter with
Monico Lopez just prior to it. According to Perez, Villanueva
described the encounter in terms that happen to track Monico
Lopez’s testimony extraordinarily closely. Monico Lopez had
declared that on the evening of the shooting Jose Villanueva
was driving a dark-colored BMW, pulled up next to him,
PEREZ v. ROSARIO 7791
showed him a semi-automatic handgun, indicated that he was
going to “handle” someone he had seen in the area where the
shooting would occur, and invited Lopez to come along,
which invitation Lopez declined. Perez described Villanueva
as mentioning that he had pulled up next to Lopez, told him
he was going to “handle his business” in the area where the
shooting would occur, and invited Lopez to come along,
which invitation Lopez declined.
Additionally, the first declaration strongly suggested that
Perez did not tell his prior counsel Villanueva’s name and the
details of his alleged confession: “I told my lawyer . . . that
I knew who the shooter was and that he had asked me for a
year. I also told [my lawyer] that I would testify to this if . . .
Villanueva did not come forward in time. I was willing to tes-
tify after the year went by, and had I testified, I would have
brought this up.” When the State of California used this point
in one of its state habeas briefs, Perez submitted a second dec-
laration in which he asserted that he indeed told his prior
counsel all the details, albeit in a different conversation.
(Perez did not contest the state’s assertion that in the initial
conversation Perez told his counsel he knew who the shooter
was without letting counsel know the shooter’s identity).
In his second declaration, Perez asserted that the latter con-
versation occurred a few weeks after the first. In his first dec-
laration, Perez does not mention the latter conversation at all,
or any change in his willingness to testify. Instead, he simply
states that “I was willing to testify after the year went by.”
But in his second declaration, Perez relates that a few weeks
after the initial conversation with his attorney, he found out
that Villanueva was dead, promptly went to his attorney,
revealed everything, and quarreled with his attorney about
whether he should testify or not. The omission from the first
declaration of all this information, if it were true, is startling.
4
In his first declaration Perez said that Villanueva came to
see him in June of 1995. In the second declaration Perez said
7792 PEREZ v. ROSARIO
that Villanueva came in June of 1996. If we are to believe the
first declaration, then Perez was allegedly informed of Jose
Villanueva’s confession before his plea bargain hearing in
July of 1995. Yet Perez would have us believe that, despite
hearing Jose Villanueva’s confession and his promise to con-
fess publicly in a year, Perez would have accepted a plea bar-
gain offer of 14 years in prison. If we are to believe the
second declaration, then Perez is in the position of, just two
months before trial, promising Villanueva to wait a year
before making any statements and telling his attorney he’ll be
happy to testify himself if Villanueva has not come forward
within the year.
Perez’s first declaration gives no indication that his prior
counsel kept him from the stand against his will. Yet when the
State of California emphasized this point in its response brief
in the state habeas proceedings, Perez’s second declaration
described for the first time the argument with prior counsel
and the behavior by counsel in keeping him from the stand
that “shocked and upset” him (but not enough, apparently, to
have included it in the first declaration).
5
In his first declaration Perez suggested that he did not take
an active role in insisting that he be put on the stand: “I was
willing to testify after the year went by, and had I testified, I
would have brought this up. However, my [lawyer] never pre-
pared me to take the stand and never called me to testify . . . .”
Indeed, in the accompanying habeas petition, Perez merely
alleged that his prior counsel had failed to obtain his informed
consent before not having him testify. But in his second dec-
laration, Perez recounted insisting that he be allowed to tes-
tify: “I responded to [prior counsel] that I needed to tell the
judge the truth, and insisted that I wanted to testify, and that
if it would make the judge angry, so be it.” Perez stated that
his attorney finally seemed to assent.
PEREZ v. ROSARIO 7793
In his second declaration, Perez explained that he insisted
on testifying and was “shocked and upset” when his attorney
did not call him to the stand. Yet in a letter written to the trial
judge after the trial, Perez indicated that his decision not to
testify was voluntary. There is no hint of shock or upset. “Be-
live [sic] me,” Perez wrote, “I wanted to take the stand but
was advised not to.”
[11] Each of these numerous reasons for discrediting the
story of Villanueva’s confession, and especially of Perez’s
subsequent interactions with his attorney, is by itself telling.
Combined, they make his story entirely doubtful. We there-
fore confidently defer to the California court’s finding, with-
out evidentiary hearing, that Perez’s account is incredible.
IV
Perez also urges that the district court erred in failing to
grant an evidentiary hearing.4 We review for abuse of discre-
tion. Villafuerte v. Stewart, 111 F.3d 616, 633 (9th Cir. 1997).
That discretion, however, is constrained. Congress has speci-
fied circumstances in which a district court may not hold an
evidentiary hearing. 28 U.S.C. § 2254(e)(2) (stating that, with
exceptions, “[i]f the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court shall not
hold an evidentiary hearing on the claim”). There are also
judicially created constraints. See Townsend v. Sain, 372 U.S.
293 (1963) (listing circumstances in which district courts
should generally hold an evidentiary hearing).
[12] Perez requested evidentiary hearings in the state court;
the district court was thus not barred from conducting a hear-
ing. See Baja v. Ducharme, 187 F.3d 1075, 1078-79 (9th Cir.
4
Even though deference was owed to the state court’s findings of facts,
a federal evidentiary hearing could still be held to see if those findings
could be overcome by clear and convincing proof. See 28 U.S.C.
§ 2254(e)(1).
7794 PEREZ v. ROSARIO
1999). Nor was it required to grant one. Where a state court
has already made the relevant findings of fact, district court
evidentiary hearings would have no purpose if not to produce
new evidence possibly contradicting those state court find-
ings. Perez’s allegations were still entirely incredible, and no
further showings were made to suggest any real possibility of
such a contradiction. The district court could not have abused
its discretion in denying the request for an evidentiary hearing
where, as here, clear and convincing proof was required. See
Davis, 384 F.3d at 644, 646-47; Downs, 232 F.3d at1041 (9th
Cir. 2000) (affirming the district court’s denial of a § 2254
evidentiary hearing request where the district court had
allowed a year of discovery); see also Tejada, 941 F.2d at
1559 (upholding a district court refusal to conduct a § 2254
evidentiary hearing in part because “[a] petitioner is not enti-
tled to an evidentiary hearing . . . when his claims are . . . con-
tentions that in the face of the record are wholly incredible.”).5
V
[13] The judgment of the district court denying Perez’s
petition for writ of habeas corpus is, therefore,
AFFIRMED.6
5
Because Perez requested an evidentiary hearing in California state
court, he would be entitled to an evidentiary hearing on disputed facts if
“(1) he has alleged facts that, if proven, would entitle him to relief, and
(2) he did not receive a full and fair evidentiary hearing in state court.”
Horton v. Mayle, 408 F.3d 570, 582 n.6 (9th Cir. 2005). Perez cannot sat-
isfy the first prong of this test. His allegations are incredible; thus he has
not alleged facts that if proven would entitle him to relief, but rather has
alleged facts that could not be proven at all.
6
Perez’s other claims are addressed in a memorandum disposition filed
concurrently herewith.