FILED
NOT FOR PUBLICATION OCT 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TOMMIE MCDOWELL, ) No. 08-15478
)
Petitioner – Appellant, ) D.C. No. 3:04-CV-00185-ECR-RAM
)
v. ) MEMORANDUM *
)
E.K. MCDANIEL, Warden, )
)
Respondent – Appellee. )
)
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., Senior District Judge, Presiding
Submitted October 4, 2010 **
San Francisco, California
Before: FERNANDEZ and SILVERMAN, Circuit Judges, and DUFFY,***
District Judge.
Tommie McDowell appeals the district court’s denial of his petition for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
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 offer3 if counsel had not given him some
misinformation about the possible penalty he would face if the state failed to prove
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, No. 08-35204, slip op. 11117,
11128–11130 (9th Cir. Aug. 2, 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).
2
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.
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).
3