Skillful Davis v. Brian Belleque

465 F. App'x 728

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 11, 2012
• Docket: 10-36035
• Status: Unpublished

Opinions

MEMORANDUM

*

Skillful Davis appeals the district court’s denial of his petition for habeas corpus. We affirm.

Davis’s petition alleges ineffective assistance of counsel (“IAC”) in connection with his state court sentencing. As we held in Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir.2006), we cannot grant habeas relief under 28 U.S.C. § 2254(d)(1) based on a claim of noncapital sentencing IAC because there is no clearly established United States Supreme Court precedent applicable to that situation. The Supreme Court has not established any such precedent since that time.

Davis did not present a sufficient factual basis for an IAC claim, in any event. The Oregon post-conviction court denied his petition for relief based on its conclusion that his sentence was legal under state law. Based on that conclusion, it does not appear that Davis could satisfy either prong of the two-prong test for IAC in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As a result, he could not establish that the state court’s conclusion to that effect was unreasonable. See Harrington v. Richter, — U.S. -, -, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (noting the double deference owed to a state court determination of no ineffective assistance of counsel). The request to expand the certificate of appealability is denied.

AFFIRMED.

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