FILED
NOT FOR PUBLICATION NOV 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHNNY EDWARD HAMILTON, No. 13-16675
Petitioner - Appellant, D.C. No. 3:06-cv-00273-PMP-
VPC
v.
E. K. MCDANIEL; ATTORNEY MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, Senior District Judge, Presiding
Argued and Submitted September 16, 2014
San Francisco, California
Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.
For the second time, Johnny Hamilton, a Nevada state prisoner, appeals
from the district court’s denial of his petition for a writ of habeas corpus. We have
jurisdiction under 28 U.S.C. § 2253. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We remanded Hamilton’s appeal from the district court’s first denial of his
petition for a writ of habeas corpus for the district court to consider whether, under
Roe v. Flores-Ortega, 528 U.S. 470, 477–81 (2000), Hamilton’s trial counsel was
required to consult with Hamilton about filing an appeal and, if he was, whether he
did so. The district court reasoned that two decisions of the U.S. Supreme Court
issued after our remand were relevant to its consideration: (1) Harrington v.
Richter, 131 S. Ct. 770, 786 (2011), holding that “a habeas court must determine
what arguments or theories supported or . . . could have supported[] the state
court’s decision”; and (2) Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011),
holding that a federal court reviewing a state court’s decision under 28 U.S.C. §
2254(d)(1) is limited to considering the factual record that was before the state
court. The district court concluded that the evidence before the state district court
(whose decision was affirmed by the Nevada Supreme Court) could reasonably
support a finding that Hamilton’s attorney did consult with him consistent with
Flores-Ortega’s requirements.
We agree with the district court that under Richter’s deferential standard of
review, Hamilton has not carried his burden to show an unreasonable application
of Supreme Court caselaw. Even if Richter did not control and we were reviewing
this matter de novo, we would not give relief. Our scrutiny of an attorney’s
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performance must be “highly deferential” and “must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984).
The evidence before the state court included Hamilton’s own
testimony—which the state court did not find credible—that he had told his
attorney, Bell, to file a direct appeal. Bell testified that he had spoken to Hamilton
at some point after the jury verdict and that Hamilton had indicated a desire to
pursue post-conviction remedies. Bell also testified that he had a practice of
handing a form letter to clients at sentencing, explaining the right to appeal, and
that form was not in his file on Hamilton’s case, suggesting that Bell had given it
to Hamilton. Finally, after Hamilton wrote Bell a letter from prison inquiring
about an appeal, Bell responded that he was surprised by the inquiry because
Hamilton had said he wanted to file a motion for post-conviction relief.
Given the powerful presumption that an attorney gave effective assistance
under Strickland, we cannot say that Bell did not consult with Hamilton about an
appeal.
AFFIRMED.
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