Johnny Hamilton v. E.K. McDaniel

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NOT FOR PUBLICATION NOV 10 2014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

2
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.