United States of America v. Emilio Reyes-Bosque

NOT FOR PUBLICATION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
University of California, Los Angeles
Before: SCHROEDER and FRIEDLAND, Circuit Judges and CHHABRIA,**
District Judge.
Federal prisoner Emilio Reyes-Bosque 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 the 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, CLERK
U.S. COURT OF APPEALS

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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 reviewed for abuse of discretion.” United States v. Chacon–Palomares,
208 F.3d 1157, 1158-59 (9th Cir. 2000). However, the 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 invalidity 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).
“The standard for granting an evidentiary hearing [under § 2255] entails
assuming the truth of [the prisoner’s] factual 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).

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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 unnecessary 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 if
expansion of the record does not “conclusively show” the prisoner is entitled to no
relief, a hearing is still required. Id.
Here, the district court was “[f]aced with conflicting” sworn accounts from
Reyes-Bosque and from his trial attorney, Chacon-Palomares, 208 F.3d at 1159,
and 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 that 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 based on its self-serving nature.”).

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The government argues that Reyes-Bosque’s reply 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 . . . motions 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
supplement 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 an

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evidentiary hearing.
REVERSED AND REMANDED.

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