Enrique NAVA, Petitioner-Appellant, v. Jeanne S. WOODFORD, Director, Respondent-Appellee, 396 F. App'x 404

MEMORANDUM We conclude, following our independent review of Nava’s habeas petition to the California Supreme Court, that Nava fairly presented and exhausted his Sixth and Fourteenth Amendment claims, despite the state court’s procedural denial citing In re Swain, 34 Cal.2d 300, 209 P.2d 793 (1949), and People v. Duvall, 9 Cal.4th 464, 474, 37 Cal.Rptr.2d 259, 886 P.2d 1252 (1995). See Kim v. Villalobos, 799 F.2d 1317, 1319-21 (9th Cir.1986).

Nava is entitled to an evidentiary hearing in federal court because he alleged facts that, if true, would show that he was incompetent to plead guilty and is entitled to habeas relief. See Schriro v. Landrigan, 550 U.S. 465, 474, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007); Pinholster v. Ayers, 590 F.3d 651, 668 & n. 7 (9th Cir.2009) (en banc) (citing 28 U.S.C. § 2254(e)(2)), cert. granted sub nom. Cullen v. Pinholster, - U.S. -, 130 S.Ct. 3410, 177 L.Ed.2d 323 (2010).

Nava’s allegation that he attempted suicide and was injected with psychotropic drugs hours before the plea hearing is not bald or inherently incredible, see United States v.

Howard, 381 F.3d 873, 879 (9th Cir.2004), and Nava alleges that defense counsel and the trial court were aware of some or all of the facts surrounding his “medical situation.” The state court record does not refute Nava’s factual allegations, see Landrigan, 550 U.S. at 474, 127 S.Ct. 1933, so Nava is entitled to an evidentiary hearing on his claims that defense counsel provided ineffective assistance in allowing him to plead guilty and that the trial court should have entertained a bona fide doubt as to his competence. See McMurtrey v. Ryan, 539 F.3d 1112, 1118-19 (9th Cir.2008), Howard, 381 F.3d at 877.

REVERSED and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.