Tommie McDowell v. E McDaniel

400 F. App'x 242

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 21, 2010
• Docket: 08-15478
• Status: Unpublished

Opinion

MEMORANDUM ***

Tommie McDowell appeals the district court’s denial of his petition for habeas corpus relief. See 28 U.S.C § 2254. We affirm.

As the parties agree, the only issue before us is whether counsel was ineffective at the time of presenting a plea offer to McDowell. We must apply the familiar deferential standards to McDowell’s claim that he is entitled to habeas corpus relief. See Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1174-75, 155 L.Ed.2d 144 (2003); Williams v. Taylor, 529 U.S. 362, 405-10, 120 S.Ct. 1495, 1519-22, 146 L.Ed.2d 389 (2000). In fact, when, as here, the claim is ineffective assistance of counsel, 1 we owe double deference to the state courts’ decisions. 2

In order to prevail, McDowell must demonstrate that the state courts unreasonably determined that he failed to show a reasonable probability that he would have accepted the State’s plea offer 3 if counsel had not given him some misinformation about the possible penalty he would face if the state failed to prove the first degree murder charge against him, 4 but proved a lesser offense instead. 5 On the record before the Nevada Supreme Court, we cannot say that its determination that “McDowell cannot show he was prejudiced by any erroneous advice by his trial counsel” was objectively unreasonable.

AFFIRMED.

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

1 . See Strickland v. Washington, 466 U.S. 668, 687, 695, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984).

2 . See Yarborough v. Gentry, 540 U.S. 1, 5-6, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003) (per curiam); Cheney v. Washington, 614 F.3d 987, 987, 990, 994-95 (9th Cir.2010).

3 . See Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); Weaver v. Palmateer, 455 F.3d 958, 967 (9th Cir.2006).

4 . That charge carried a maximum penalty of life without the possibility of parole. Nev. Rev.Stat. § 200.030(4)(b) (1993). Notably, by his own admission, he chose to risk that rather than accept an offer of a maximum of twenty years imprisonment.

5 .Because of his past criminal record, a possible enhancement, which was not yet charged, could also result in a maximum penalty of life without the possibility of parole. Nev.Rev. Stat. § 207.010(2), (4) (1993).