FILED
NOT FOR PUBLICATION JAN 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RONALD G. RINER, No. 07-16664
Petitioner - Appellant, D.C. No. CV-99-00258-
ECR/RAM
v.
FRANKIE SUE DEL PAPA; et al., MEMORANDUM *
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, District Judge, Presiding
Argued and Submitted December 2, 2009
San Francisco, California
Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.
Defendant Ronald Riner appeals the district court’s denial of his motion for
reconsideration, wherein he alleged the district court erred by finding his habeas
claims unexhausted in the state court. This court granted a certificate of
appealability as to the following issue: “whether the district court erred in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
dismissing as unexhausted Riner’s claim that counsel was ineffective in failing to
investigate the effects of Elavil and allowing him to plead guilty under the
influence of that drug; and if so, whether Riner received ineffective assistance for
the above reasons.” We note that an earlier Ninth Circuit panel remanded this case
back to the district court “for reconsideration in light of the Supreme Court’s []
decision in Rhines v. Weber.” On remand, instead of arguing this issue, Riner filed
a motion for reconsideration arguing that the district court erred in the first instance
by ruling his state claims unexhausted; the district court denied that motion. Even
if we were to assume that this case is properly before this panel now and even were
we to assume that the district court erred in ruling Riner’s claims unexhausted, we
nevertheless conclude that Riner did not receive ineffective assistance of counsel.
Riner’s appeal is governed by 28 U.S.C. § 2254. Under that statute, federal
courts will deny a defendant’s habeas petition, unless “the state court applies a rule
that contradicts the governing law set forth in [United States Supreme Court]
cases,” Williams v. Taylor, 529 U.S. 362, 405 (2000), or “if the state court
confronts a set of facts that are materially indistinguishable from a decision of [the
United States Supreme Court] and nevertheless arrives at a result different from
[that Court’s] precedent,” id. at 406. Moreover, for the writ to be issued, the state
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court’s application of clearly established law must be objectively unreasonable. Id.
at 409–10.
Additionally, Riner’s ineffective assistance of counsel claim is governed by
Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test, Riner
must prove that: (1) “that counsel’s representation fell below an objective standard
of reasonableness,” id. at 688; and (2) “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different,” id. at 694. Moreover, when a defendant pleads ineffective
assistance of counsel in relation to a plea of guilty, as Riner has done, he “must
show that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
As to the first prong of the Strickland test, Riner has asserted that his
attorney was ineffective, because he failed to investigate the effects of Elavil on
Riner’s capacity to enter a guilty plea and failed to order a competency test to
prove the matter. We disagree.
We cannot say that the Nevada state courts’ adjudication of Riner’s claim
was “objectively unreasonable” or contrary to clearly established Supreme Court
precedent. Riner has offered only unverified allegations in his complaint that: (1)
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he was under the influence of Elavil at the time of his plea; or (2) that his counsel
was aware of any possible Elavil use at the time. Riner points to no evidence to
prove either of these allegations. Because we afford counsel a strong presumption
of competence under Strickland, we cannot hold that Riner’s counsel was
ineffective.1
AFFIRMED.
1
Moreover, even assuming that every factual allegation that Riner has made
is true, Riner has not alleged in his complaint or any other document that “but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Lockhart, 474 U.S. at 59. Thus, Riner has failed to even properly
allege a federal “ineffective assistance of counsel” claim.
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