Gabriel Barrios v. Ron Rackley

FILED

NOT FOR PUBLICATION

OCT 24 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GABRIEL BARRIOS, No. 14-56972

Petitioner-Appellant, D.C. No. 2:08-cv-06411-GHK-DTB v.

RON RACKLEY, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California George H. King, District Judge, Presiding

Argued and Submitted August 29, 2016 Pasadena, California

Before: KOZINSKI and BYBEE, Circuit Judges, and WALTER,** District Judge.

1. The Fourteenth Amendment prohibits state courts from honoring

guilty pleas that are not made voluntarily or intelligently. See Boykin v. Alabama,

395 U.S. 238, 242–43 (1969). A plea is not intelligent when, among other things,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Donald E. Walter, United States District Judge for the Western District of Louisiana, sitting by designation. page 2 “a defendant pleads guilty to a crime without having been…

concurring in the judgment:

While I agree with the majority’s conclusion, its analysis suffers from a serious misunderstanding of the magistrate judge’s report and recommendation. The magistrate judge correctly recognized that we must accept what Barrios said in court at the time he pled guilty as true—and his later testimony contradicting those statements as false—unless there is a good reason not to. See Doe v. Woodford, 508 F.3d 563, 571 (9th Cir. 2007) (“Solemn declarations in open court carry a strong presumption of verity.”) (citation omitted); Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986); see also Blackledge v. Allison, 431 U.S. 63, 74 , 97 S.Ct. 1621 , 52 L.Ed.2d 136 (1977) (emphasizing that representations made during a change of plea hearing “constitute a formidable barrier in any subsequent collateral proceedings”). The magistrate judge then deemed Barrios’s proffered reason not good enough, stating that Barrios “failed to overcome the strong presumption of verity.” In other words, the magistrate judge held that Barrios’s testimony about Young’s failure to discuss the elements of robbery with his client was not credible because Barrios contradicted that…

MEMORANDUM **

1.The Fourteenth Amendment prohibits state courts from honoring guilty pleas that are not made voluntarily or intelligently. See Boykin v. Alabama, 395 U.S. 238, 242-43 , 89 S.Ct. 1709 , 23 L.Ed.2d 274 (1969). A plea is not intelligent when, among other things, “a defendant pleads guilty to a crime without having been informed of the crime’s elements.” Bradshaw v. Stumpf, 545 U.S. 175, 183 , 125 S.Ct. 2398 , 162 L.Ed.2d 143 (2005).

Barrios has successfully shown that his plea was not intelligent because he never reviewed the elements of robbery with Young. Young admitted to that fact, although the magistrate judge didn’t find his testimony credible. This is the only credibility determination we see in the magistrate’s discussion of the intelligence of the plea. Even assuming that the magistrate’s credibility determination was correct in this respect, there is no persuasive evidence contradicting Barrios’s averments. As acknowledged by the magistrate, Barrios provided a plausible explanation for signing the plea form and responding in the affirmative at the plea hearing. The magistrate’s speculations that Barrios knew the elements of robbery because of his previous…