Cordova

MEMORANDUM *

Johnny Cordova appeals the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. This court issued a certificate of appealability permitting Cordova to raise the following issues: (1) whether his counsel was ineffective in advising him that the prosecution’s plea offer would remain open indefinitely, including whether Cordova was entitled to an evidentiary hearing on the issue; and (2) whether counsel was ineffective for failing to investigate or raise the issue of whether Cordova was subject to vindictive or selective prosecution. We vacate the district court’s denial of the first claim and remand for an evidentiary hearing; we affirm the district court’s denial of the second claim.

A. Plea Offer

‘We review de novo the district court’s interpretation of AEDPA standards governing the grant or denial of an evidentiary hearing, and we review for abuse of discretion the district court’s ultimate denial of an evidentiary hearing....” Earp v. Stokes, 423 F.3d 1024, 1031 (9th Cir. 2005). “[F]or a post-AEDPA petitioner to receive an evidentiary hearing in federal court, he must first show that he has not failed to develop the factual basis of…

dissenting:

I respectfully dissent from the majority’s determination to grant Johnny Cordova an evidentiary hearing on his ineffective assistance of counsel claim related to his trial counsel’s advice regarding the offered plea agreement. As the majority explains:

Majority at --•.

Ineffective assistance of counsel requires the defendant to show that counsel’s performance fell below an objective standard of reasonableness and that the errors made were so serious as to deprive defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689 , 104 S.Ct. 2052 . 1 In addition, because Cordova is in custody pursuant to a judgment of a state court, *613 we may not grant a writ of habeas corpus unless the state court’s adjudication resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court…