NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 22 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DION GUSSNER, No. 14-16135
Petitioner - Appellant, D.C. No. 5:12-cv-01876-LHK
v.
MEMORANDUM*
TERRI GONZALEZ, Warden, Warden of
the California Men’s Colony, California
Department of Corrections, State of
California,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Lucy Koh, District Judge, Presiding
Submitted September 18, 2015**
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: CHRISTEN and FRIEDLAND, Circuit Judges, and LEMELLE,*** Senior
District Judge.
Dion Gussner appeals the district court’s denial of his 28 U.S.C. § 2254
habeas corpus petition claiming ineffective assistance of counsel related to his
decision to plead guilty to gross vehicular manslaughter. We have jurisdiction
under 28 U.S.C. § 2253, and we affirm.
To prevail on a claim of ineffective assistance of counsel, Gussner needed to
establish that his counsel’s performance was both deficient and prejudicial.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice for ineffective
assistance claims relating to guilty pleas requires showing “a reasonable
probability that, but for counsel’s errors, [the defendant] would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985). Further, because Gussner’s claim was previously adjudicated on the merits
in state court, to prevail he must show that the state court was unreasonable in
applying these principles to the facts of his case. 28 U.S.C. § 2254(d)(1); Williams
v. Taylor, 529 U.S. 362, 413 (2000).
Here, it is unnecessary to decide whether counsel’s performance was
deficient because the state court reasonably concluded that Gussner could not show
***
The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.
2
prejudice. First, Gussner faced unsympathetic facts. He told officers at the scene
he "may have had too much to drink," and stipulated that his blood alcohol content
was 0.16% at the time of the accident. He also told officers that he did not see the
Honda until just before he hit it because he had taken his eyes off the road to send a
text. Gussner also had two prior alcohol-related arrests and, in this case, a child
was killed.
Second, Gussner had various reasons to quickly enter a guilty plea. The
prosecutor was investigating the possibility of murder charges when Gussner
entered his plea. Additionally, Gussner expressed that he wanted to save the
family of the deceased child further pain from a trial. Before his change of plea
and sentencing, Gussner made multiple comments regarding his deep remorse and
desire to bring immediate solace to the family. And at his sentencing, Gussner
stressed that he wanted to accept full responsibility.
For these reasons, the state court was not unreasonable in concluding that
Gussner would not have rejected the plea deal and insisted on going to trial even
had he been properly advised of his sentence exposure. This is so despite
3
Gussner's declaration to the contrary, which he submitted to the California Court of
Appeal only after the superior court denied his petition.1
AFFIRMED.
1
We decline to expand the certificate of appealability to address the
uncertified issues that Gussner raised in his opening brief. See 28 U.S.C. §
2253(c)(2).
4