FILED
NOT FOR PUBLICATION APR 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES JEFFERSON KENNER, No. 12-16143
Petitioner - Appellant, D.C. No. 3:08-cv-00489-ECR-
WGC
v.
GREGORY SMITH; NEVADA MEMORANDUM*
ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., Senior District Judge, Presiding
Submitted April 7, 2014**
San Francisco, California
*
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).
Before: BENAVIDES,*** TALLMAN, and CLIFTON, Circuit Judges.
Nevada prisoner James Jefferson Kenner argues that he was deprived of
effective representation during proceedings associated with his conviction for
felony driving under the influence, NEV. REV. STAT. § 484.3792 (Oct. 1, 2005).
Having exhausted various arguments before the state courts, Kenner filed a habeas
corpus petition pursuant to 28 U.S.C. § 2254. The district court denied the
petition, and this court granted a certificate of appealability on the narrow issue of
whether defense counsel “provided constitutionally deficient representation by
failing to consult with Kenner regarding the advantages and disadvantages of an
appeal.”
A district court’s denial of a petition for a writ of habeas corpus is reviewed
de novo, and this court may affirm on any ground supported by the record.
Varghese v. Uribe, 736 F.3d 817, 822–23 (9th Cir. 2013) (citations omitted).
Because the arguments raised have already been rejected by the Nevada Supreme
Court, we may grant relief only if that decision was “contrary to, or [ ] an
unreasonable application of, clearly established Federal law;” or where the state
court’s conclusion was “based on an unreasonable determination of the facts.” 28
U.S.C. § 2254(d). “As a condition for obtaining habeas corpus from a federal
***
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
court, a state prisoner must show that the state court’s ruling on the claim . . . was
so lacking in justification that there was an error . . . beyond any possibility for
fairminded disagreement.” Harrington v. Richter, --- U.S. ----, 131 S. Ct. 770,
786–87 (2011).
After a thorough review of Kenner’s case, we conclude that he is not entitled
to relief. The state district court held an evidentiary hearing in which testimony
was taken from four witnesses, including Kenner. Notwithstanding this fully
developed record, the Nevada Supreme Court found no legal or factual support for
Kenner’s allegations of ineffective representation, and Kenner has not pointed us to
any error in that record or the subsequent analysis. Nor do we find any.
Consequently, because Kenner has not demonstrated that the state habeas
adjudication was unreasonable or contrary to federal law, the decision “withstands
scrutiny under § 2254(d).” Hibbler v. Benedetti, 693 F.3d 1140, 1150 (9th Cir.
2012) (referring to 28 U.S.C. § 2254).
AFFIRMED.