Milton Plummer v. E. McDaniel

444 F. App'x 177

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 20, 2011
• Docket: 09-15587
• Status: Unpublished

Opinion

MEMORANDUM **

Milton Plummer appeals the dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. A certifícate of appealability was granted with respect to two issues: (1) whether Plummer properly exhausted his claim that his guilty plea was coerced and not entered knowingly, intelligently, or voluntarily; and (2) whether the district court properly concluded that Plummer’s claim regarding the denial of his motion to withdraw his guilty plea failed to state a claim cognizable on federal habeas review. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

Plummer did not exhaust his coercion claim. The claim was never fairly presented to the Nevada Supreme Court. O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). The issue addressed on direct appeal concerned the adequacy of Plummer’s plea canvass. His state habeas petition presented the issue whether he understood his plea. And the pro per documents sent to the Nevada Supreme Court were never filed or considered.

We affirm the district court’s decision to deny habeas relief based on the second claim because this claim was also not exhausted. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir.2007) (“We may affirm on any ground present in the record.”).

We do not address Petitioner’s uncerti-fied claim because he failed to “ma[k]e a substantial showing of a denial of a constitutional right” to warrant issuance of a certificate of appealability. Rhoades v. Henry, 598 F.3d 511, 518 (9th Cir.2010).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.