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,

OPINION Respondent-Appellee. 

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

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. 

5535
COUNSEL

Kent A. Russell, Russell and Russell, San Francisco, California, 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 respondentappellee.

OPINION

O’SCANNLAIN, Circuit Judge: 

In this habeas corpus appeal, we must decide whether an

attorney’s alleged faulty advice to his criminal defendant client during the plea bargaining process in state court constitutes ineffective assistance of counsel.

I

In 1987 Albino Perez’s girlfriend left him for John Hernandez. 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 investigate, 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. HerPEREZ v. ROSARIO 5539
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 tenmillimeter 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 prosecution’s key witness. The prosecution also presented forensic

evidence of gun-shot residue in Perez’s BMW and had a ballistics 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 operable 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 evidence 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 threestrikes 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 Hernandez, his brother, had admitted that he was not really sure

5540 PEREZ v. ROSARIO
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

for a state writ of habeas corpus, claiming ineffective assistance of counsel on numerous grounds. He also submitted various 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 confessed 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 Villanueva confession and had planned on testifying about it but

prior counsel closed without calling him. Additional declarations were submitted, including one from a man named Jim

Ford who said he accompanied Villanueva during his confession 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 summarily denied Perez’s petition to it. 

PEREZ v. ROSARIO 5541
D

In due course Perez filed his petition for writ of habeas corpus 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 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 prejudice. Generally, there must be a “reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding 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 prosecutor. 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

1All parties agree that the prosecutor was wrong. 

5542 PEREZ v. ROSARIO
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 properly 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

establish that he would have accepted the plea bargain if

offered one.2 Second, it made a pair of factual findings to

2There appears to be some uncertainty in this circuit as to the objective

reasonableness of a state court’s holding that uncorroborated, after-thefact 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, conviction, 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 constitutionally infirm are insufficient to overcome the presumption of regularity 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 5543
which we must ordinarily defer: that prior counsel knew during the preliminary hearing that this conviction could potentially 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. 

[3] Any of these four findings, if sustained, would be

enough to warrant denying Perez’s claim. Because Perez contests 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 bargain 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 prosecution 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 bargaining would have been different. See Hill v. Lockhart, 474 U.S.

5544 PEREZ v. ROSARIO
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 mistaken 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 capitalize on the plea bargain, though outcome determinative, may

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.” Williams, 529 U.S. at 392. In Lockhart, Fretwell’s lawyer had

failed to make an objection to the admission of certain evidence when he could have under a then-prevailing Eighth Circuit 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 mistaken interpretation of law from which Perez could have benPEREZ v. ROSARIO 5545
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 procedural 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. 

[8] We have never specifically addressed whether a plea

bargain offer made on false legal assumptions would be controlled 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 instruction 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 evidence showing that Rick Adams, who lived in the neighborhood, 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.

5546 PEREZ v. ROSARIO
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

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 . . . Villanueva 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 entitled 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 further 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,

PEREZ v. ROSARIO 5547
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 testimony would “ ‘upset the judge’ . . . who was [otherwise]

favorable because she was against the 3-strikes law.” According 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 counsel’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

that it was accurate. In Rick Adams’s supporting declaration,

he stated that he had lent his dark-colored BMW to Jose Villanueva 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

5548 PEREZ v. ROSARIO
filing which pointed out that Perez’s first version of the episode 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, however, by 28 U.S.C. § 2254(e)(1), where “there was an unreasonable 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 circumstances. 

[10] Decisions as to the reasonableness of requiring an evidentiary 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 district 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

PEREZ v. ROSARIO 5549
(4th Cir. 1998) (“We have long held that the need for an evidentiary hearing may be obviated by . . . expansion of the

record”)).3 We are satisfied that state court fact determinations

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) (acknowledging that “there may be instances where the state court can

determine without a hearing that a criminal defendant’s allegations 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

3These 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

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.”). 

5550 PEREZ v. ROSARIO
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 counsel 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 implicating 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 gunshots from the direction the cars had driven. 

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 confession. 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 confession. In his third motion for a new trial, the new attorney

presented a variety of evidence to indicate that John Hernandez 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 Villanueva 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 v. ROSARIO 5551
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 declaration, Perez has Villanueva not only confessing to the shooting 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,

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 testify 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 declaration 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). 

5552 PEREZ v. ROSARIO
In his second declaration, Perez asserted that the latter conversation occurred a few weeks after the first. In his first declaration, 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

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 confess publicly in a year, Perez would have accepted a plea bargain 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). 

PEREZ v. ROSARIO 5553
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 prepared 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 declaration, Perez recounted insisting that he be allowed to testify: “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. 

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. “Belive [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 therefore confidently defer to the California court’s finding, without 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 discre4Even 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). 

5554 PEREZ v. ROSARIO
tion. Villafuerte v. Stewart, 111 F.3d 616, 633 (9th Cir. 1997).

That discretion, however, is constrained. Congress has specified 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 hearing. See Baja v. Ducharme, 187 F.3d 1075, 1078-79 (9th Cir.

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 findings. 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 entitled to an evidentiary hearing . . . when his claims are . . . contentions that in the face of the record are wholly incredible.”).

V

[13] The judgment of the district court denying Perez’s

petition for writ of habeas corpus is, therefore, 

PEREZ v. ROSARIO 5555
AFFIRMED.5

5Perez’s other claims are addressed in a memorandum disposition filed

concurrently herewith. 

5556 PEREZ v. ROSARIO