Michael Kershaw v. Mike Evans

FILED
NOT FOR PUBLICATION JAN 25 2011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 UPTON KERSHAW, No. 09-17384

Petitioner - Appellant, D.C. No. 2:06-cv-01430-MMS

v.
MEMORANDUM *
MIKE EVANS, Warden,

Respondent - Appellee.

Appeal from the United States District Court
for the Eastern District of California
Mary M. Schroeder, Circuit Judge, Presiding

Submitted January 10, 2011 **

Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

California state prisoner Michael Upton Kershaw appeals pro se from the

district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction under 28 U.S.C. § 2253, and we affirm.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
 Kershaw contends that his counsel was ineffective for failing to accurately

advise him regarding his potential sentence if he rejected the state’s plea offer and

proceeded to trial.

The state court, after conducting an evidentiary hearing, found that Kershaw

failed to show either deficient performance or prejudice regarding this claim. This

decision was not contrary to or an unreasonable application of Strickland v.

Washington, 466 U.S. 668, 690-93 (1984). See 28 U.S.C. § 2254(d)(1).

The state court also found that Kershaw was aware of his potential

sentencing exposure under California Penal Code § 667.71. Kershaw failed to

present “clear and convincing evidence” overcoming the presumption of

correctness of this finding. Accordingly, the state court’s decision was not based

on an “unreasonable determination of the facts in light of the evidence presented in

the state court proceeding.” See 28 U.S.C. § 2254(d)(2),(e)(1).

AFFIRMED.

2 09-17384