Mark Harris v. Warren Montgomery

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 22, 2019
• Docket: 16-56596
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAR 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MARK A. HARRIS, No. 16-56596

Petitioner-Appellant, D.C. No. 2:11-cv-07519-JVS-JPR v. Central District of California, Los Angeles WARREN L. MONTGOMERY, Warden, ORDER Respondent-Appellee.

Before: FISHER, CALLAHAN, and OWENS, Circuit Judges.

The memorandum disposition filed on February 22, 2019, is hereby

amended. The superseding amended memorandum disposition will be filed

concurrently with this order.

The petition for panel rehearing is DENIED. No further petitions for

rehearing or petitions for rehearing en banc will be entertained. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARK A. HARRIS, No. 16-56596

Petitioner-Appellant, D.C. No. 2:11-cv-07519-JVS-JPR v.

WARREN L. MONTGOMERY, Warden, AMENDED MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted February 13, 2019 Pasadena, California

Mark Harris, incarcerated in a California prison, appeals from the district

court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his

sentence. As the parties are familiar with the facts, we do not recount them here.

We review de novo the district court’s denial of habeas relief. See Ybarra v.

McDaniel, 656 F.3d 984, 989 (9th Cir. 2011). However, we may only grant relief

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) if the state

court’s adjudication on the merits was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or (2) “an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” 28 U.S.C

§ 2254(d). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Harris contests the state court’s denial of his ineffective-assistance-of-

counsel claim under both prongs of 28 U.S.C. § 2254(d); however, neither

argument is successful. First, the state court identified the correct legal principle

and reasonably applied it. See Wiggins v. Smith, 539 U.S. 510, 520-21 (2003)

(overcoming AEDPA deference requires that the application of precedent be

“objectively unreasonable,” not just “erroneous”). Even assuming that counsel

performed deficiently, the state court reasonably concluded that there was no

“reasonable probability that, but for counsel’s errors, [Harris] would not have

pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474

U.S. 52, 57-59 (1985). Second, the state court made a reasonable factual

determination that Harris’s allegation that he would not have pled guilty if

correctly informed about his parole term was “wholly unbelievable.” In light of

the significant bargain Harris received by pleading guilty and the lack of

contemporaneous evidence that parole was a significant concern to Harris, the state

2 court’s conclusion was not an “unreasonable determination of the facts.” 28

U.S.C. § 2254(d)(2); see also Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.

2004) (describing § 2254(d)(2) as a “daunting standard”).

Because we cannot say that the state court’s ruling “was so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement,” Harrington v. Richter,

562 U.S. 86, 103 (2011), we affirm the state court’s ineffective-assistance ruling.

2. Harris also argues that his plea was neither voluntary nor knowing

because he was misinformed about his parole term, thus the state court’s holding

contravened clearly established law. Although a guilty plea must be voluntarily

and intelligently made, see Boykin v. Alabama, 395 U.S. 238, 242 (1969), a

defendant must only be informed of a plea’s direct consequences, see Brady v.

United States, 397 U.S. 742, 755 (1970). The United States Supreme Court has

never held that a parole term is a “direct consequence” of a guilty plea. See

Chaidez v. United States, 568 U.S. 342, 350 n.6 (2013) (explaining that Hill v.

Lockhart, 474 U.S. 52, 56 (1985), did not establish “whether parole eligibility” was

a direct or collateral consequence). Nor has the Supreme Court established

whether a Boykin error is structural or requires harmless-error review. As such, the

state court’s holding was neither “contrary to” nor an “unreasonable application

of[] clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

3 3. Harris’s final assertion is that the state court unreasonably applied clearly

established law to deny his due-process claim that he was deprived a state-

protected interest, created by California Penal Code § 1170, in an accurate pre-plea

parole advisement. This argument fails, however, because the state statute lacks

both the requisite “substantive predicates” and “explicitly mandatory language” to

create a liberty interest. See Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 462-

63 (1989). For instance, it does not mandate a particular outcome when the law is

violated, such as requiring a judge to reject a plea. See In re Moser, 862 P.2d 723,

729 (Cal. 1993). Federal habeas “is not available to remedy state law errors”;

therefore, this claim is not cognizable for our review. Bonin v. Calderon, 59 F.3d

815, 841 (9th Cir. 1995).

AFFIRMED.