FILED
NOT FOR PUBLICATION JAN 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MICHAEL DEARING, No. 08-16983
Petitioner - Appellant, D.C. No. 1:03-cv-05364-LJO-JMD
v.
MEMORANDUM *
FRANK X. CHAVEZ,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted December 8, 2010
San Francisco, California
Before: HUG, D.W. NELSON, and McKEOWN, Circuit Judges.
Appellant Michael Dearing (“Dearing”) appeals the denial of his petition for
a writ of habeas corpus stemming from his no contest plea to various counts of
sexual abuse of a child in California state court. Dearing received a certificate of
appealability on the question of whether his no contest plea was entered knowingly
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and voluntarily, when the trial court failed to advise him of the maximum
punishment that could be imposed. Dearing also raises the uncertified issue of
whether his no contest plea was invalid because he was not mentally competent to
enter his plea. We have jurisdiction pursuant to 28 U.S.C. § 2253. Finding no
reversible error on the certified question, we affirm. We conclude that reasonable
jurists would not find Dearing’s uncertified claim to be debatable and therefore
decline to expand the certificate of appealability as to that claim.
It is undisputed that the state trial court failed to advise Dearing of his
maximum possible sentence before accepting his no contest plea. The only
sentence discussed on the record during the plea colloquy was an indeterminate 15-
years-to-life sentence for one count. At sentencing, however, Dearing received a
determinate 82-year sentence for several other counts in addition to the
indeterminate sentence. Dearing maintains that the trial court’s omission
amounted to a constitutional error. We disagree. Although a trial court has a
constitutional obligation to obtain an affirmative waiver of the right against
compulsory self-incrimination, the right to trial by jury, and the right to confront
one’s accusers, see Boykin v. Alabama, 395 U.S. 238, 243 (1969), no Supreme
Court case mandates that the trial court itself must notify a defendant of his
maximum possible sentence before accepting a plea. The state court therefore did
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not err in applying California state precedent, which requires that a plea be set
aside under these circumstances only where prejudice is demonstrated. Dearing
failed to establish prejudice here because he pleaded no contest for the express
purpose of sparing the victim from testifying at trial. Additionally, the record
strongly supports the conclusion that Dearing had personal knowledge of the
sentencing consequences. His trial counsel “recall[ed] specifically discussing the
sentence ranges on the[] particular charges with Mr. Dearing.”
The court’s determination was not contrary to, or an unreasonable
application of, clearly established federal law as determined by the Supreme Court.
28 U.S.C. § 2254(d)(1).
AFFIRMED.
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