Chris George v. Raymond Madden

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 21, 2020
• Docket: 18-55258
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHRIS ANTHONY GEORGE, No. 18-55258

Petitioner-Appellant, D.C. No. 5:16-cv-01016-RGK-AJW v.

RAYMOND MADDEN, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted December 12, 2019 Pasadena, California

Before: BOGGS,** WARDLAW, and BEA, Circuit Judges.

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

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 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 (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 (2011).

Reviewing the state court record and accepting all nonconclusory allegations

in his state habeas petition as true, id. at 188 n.12, we conclude that the state court’s

holding that George failed to state a prima facie case for habeas relief is not

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 (quoting In re Hochberg, 2 Cal. 3d 870, 874, n.2 (1970)) (internal quotation marks omitted).

2 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, 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.

AFFIRMED.

2 George briefs additional uncertified issues. They do not meet the criteria for certification, see Slack v. McDaniel, 529 U.S. 473, 483–84 (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.