NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff

- Appellee,

v. EMILIO REYES

- BOSQUE, Defendant

- Appellant. No. 14

- 55445 D.C. Nos. 3:12

- cv - 00019

- BEN

3:05

- cr - 02239

- BEN

- 1

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding Argued and Submitted November 4, 2015 U niversity of California , Los Angeles Before: SCHROEDER and FRIEDLAND, Circuit Judges and CHHABRIA, ** District Judge. Federal prisoner Emilio Reyes

- Bo sque appeals the district court’ s denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Reyes

- Bosque contends th e district court erred in denying his ineffective assistance

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36

- 3.

** The Honorable Vince Chhabria, District Judge for the U.S. District Court for the Northern District of California, sitting by designation. 

# FILED

DEC 9 2015 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

of counsel claim without holding an evidentiary hearing. We reverse and remand.

“ A district court’ s decision to deny an evidentiary hearing on a § 2255 motion is re viewed for abuse of discretion.” United States v. Chacon

– Palomares , 208 F.3d 1157, 1158

- 59 (9th Cir. 2000) . However, t he statute provides that

“ [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing ,” § 2255(b) (emphasis added) . Therefore , “ a hearing is mandatory whenever the record does not affirmatively manifest the factual or legal invalid ity of the petitioner’s claims , ” and failure to grant one in such a circumstance is an abuse of discretion. Baumann v. United States , 692 F.2d 565, 571 (9th Cir. 1982)

.

“ T he standard for granting an evidentiary hearing [under § 2255] entails assuming the truth of [the p risoner’s ] fac tual allegations.” United States v. Leonti , 326 F.3d 1111, 1121 (9th Cir . 2003). A prisoner can therefore “ demonstrate that the district court erred in not granting an evidentiary hearing[] [by showing he] (1) . . . allege[d] specific facts [in the motion] which, if true, would entitle him to relief; and [that] (2) the petition, files and record of the case [did not] conclusively show that he [wa]s entitled to no relief. ” United States v. Howard , 381 F.3d 873, 877 (9th Cir. 2004) (citing 28 U.S.C. § 2255).3

A district court, faced with specific allegations that would entitle the prisoner to relief, may only deny an otherwise mandatory evidentiary hearing if it

“ can expand the record . . . and thereby answer any unanswered questions, making it unnece ssary for the court to conduct a hearing.” Chacon

- Palomares , 208 F.3d at 1160 (citing Shah v. United States , 878 F.2d 1156, 1160 (9th Cir.1989)). But i f expansion of the record does not “ conclusively show” the prisoner is entitled to no relief, a hearing is still required. Id. Here, t he district court was “ [f]ac ed with conflicting” sworn accounts from Reyes

- Bosque and from his trial attorney , Chacon

- Palomares , 208 F.3d at 1159 ,

a nd Reyes

- Bosque’s version of the facts, “if true, would entitle him to relief.” Howard , 381 F.3d at 877. In denying relief, the district court emphasized that Reyes

- Bosque's version of the facts was self

- serving, ER 6, but that is not enough to show tha t Reyes

- Bosque’s claim was “refuted by the record.” United States v. Quan , 789 F.2d 711, 715 (9th Cir. 1986) . Section 2255(b) imposes no requirement of independent corroboration , and a declaration is not inherently unbelievable merely because it is self

- serving

. Cf. Nigro v. Sears, Roebuck & Co. , 784 F.3d 495, 497 (9th Cir. 2015) (on summary judgment, a “ district court may not disregard a piece of evidence . . . solely ba sed on its self

- serving nature.”)

.4

The gove rnment argues that Reyes

- Bosque’ s re ply papers were inconsistent with his original § 2255 motion , and contends the district court could have denied the motion without a hearing for that reason. But , putting aside the fact that the district court did not deny the motion on this basis , it is not clear that the assertions in Reyes

- Bosque’ s reply papers are irreconcilable with those in his original petition. This is especially true because Reyes

- Bosque was proceeding pro se, and therefore his pleadings must be “liberally construed.” Erickson v . Pardus , 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble , 429 U.S. 97, 106 (1976)); see also Zichko v. Idaho , 247 F.3d 1015, 1020 (9th Cir. 2001) (The liberal construction “ rule particularly applies to

. . . mot ions filed by pro se prisoners.” (citing United States v. Seesing , 234 F.3d 456, 462

- 63 (9th Cir. 2000) ) ). Because a hearing was required on the current record, we reverse and remand. On remand the district court may wish to give the parties a chance to

s upplement the record, particularly because the government did not have occasion to respond to new factual assertions Reyes

- Bosque made in his reply papers , and the government may have relevant information concerning the history of prior plea negotiations

. But unless an expanded record conclusively shows that Reyes

Bosque is not entitled to relief, § 2255(b) will require the court to hold an5

evidentiary hearing.
REVERSED AND REMANDED.