GEORGE v. MADDEN (2020)

MEMORANDUM **

Chris George appeals the district court’s denial of his habeas corpus petition challenging his California conviction and sentence for rape of an unconscious person, committing a lewd act with a child, and active participation in a criminal street gang. We review a district court’s decision on a habeas corpus petition de novo. Rodriguez v. McDonald, 872 F.3d 908, 918 (9th Cir. 2017). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

George argues that his trial attorney provided ineffective assistance of counsel by advising George to reject a favorable plea deal. The state court rejected this claim on the merits on the ground that George failed to state a prima facie case for habeas relief. Because George’s claim has been adjudicated on the merits in state court, 28 U.S.C. § 2254(d) bars relitigation of his ineffective assistance of counsel claim in federal court unless the state court decision was either “contrary to, or involved an unreasonable application of, clearly established Federal law,” 28 U.S.C. § 2254(d)(1), or “based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding,” id. § 2254(d)(2). See Harrington v. Richter, 562 U.S. 86, 98, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Our “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.”¹ Cullen v. Pinholster, 563 U.S. 170, 181, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).

Reviewing the state court record and accepting all nonconclusory allegations in his state habeas petition as true, id. at 188 n.12, 131 S.Ct. 1388, we conclude that the state court’s holding that George failed to state a prima facie case for habeas relief is not unreasonable. In his state habeas petition, George alleged that his trial attorney’s “misadvice” caused him to reject a favorable plea deal. George, however, did not allege sufficient facts regarding how his attorney had “misadvised” him. Thus, George failed to allege facts that made plausible his conclusory allegation that such “misadvice” caused him to reject the plea deal. Because George has not demonstrated that the state court’s adjudication of his ineffective-assistance-of-counsel claim resulted in a decision “contrary to” or “involv[ing] an unreasonable application” of “clearly established” federal law, or was “based on an unreasonable determination of the facts,” Harrington, 562 U.S. at 98, 131 S.Ct. 770, we are barred from considering any evidence George submitted in the district court that he contends additionally supports his claim.² Pinholster, 563 U.S. at 188 n.12, 131 S.Ct. 1388.

AFFIRMED.

FOOTNOTES

1.   The state court record “includes both the allegations of [the] habeas corpus petition ․ and ․ any matter of record pertaining to the case.” Pinholster, 563 U.S. at 188 n.12, 131 S.Ct. 1388 (quoting In re Hochberg, 2 Cal. 3d 870, 874, n.2, 87 Cal.Rptr. 681, 471 P.2d 1 (1970)) (internal quotation marks omitted).

2.   George briefs additional uncertified issues. They do not meet the criteria for certification, see Slack v. McDaniel, 529 U.S. 473, 483–84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (requiring a “substantial showing of the denial of a constitutional right”), and, construing the briefing as a motion to consider those issues, see 9th Cir. R. 22-1(e), we deny the motion.