Riki Muhammad v. William White;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
AK/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIKI MUHAMMAD,
Petitioner - Appellant,
v.
WILLIAM WHITE; et al.,
Respondents - Appellees.
No. 07-17201
D.C. No. CV-06-01036-SMM
MEMORANDUM *
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Submitted March 16, 2010**
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
William White is substituted for his predecessor, Dora Schriro, pursuant to
Fed. R. App. P. 43(c)(2).
Arizona state prisoner Riki Muhammad appeals from the district court’s
FILED
MAR 26 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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AK/Research 07-17201 2
judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we vacate and remand.
Muhammad contends that his trial counsel was ineffective for providing
erroneous advice regarding the degree of intent that the state was required to prove
at trial. Muhammad states that his reliance on this erroneous advice led him to
reject a plea offer and this fact, coupled with the significant sentencing disparity, is
sufficient to demonstrate prejudice. Muhammad alleges facts which, if proven,
would entitle him to relief and, because he was never given a full and fair hearing
in state court, he is entitled to a hearing in district court. We vacate the district
court’s denial of the habeas petition and remand for an evidentiary hearing to
address the merits of Muhammad’s ineffective assistance of counsel claim. See
Houston v. Schomig, 533 F.3d 1076, 1083 (9th Cir. 2008).
VACATED; REMANDED FOR AN EVIDENTIARY HEARING.

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