FILED
NOT FOR PUBLICATION MAY 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES LEE EVANS, No. 09-56012
Petitioner - Appellant, D.C. No. 5:07-cv-00371-VBF
v.
MEMORANDUM *
TOM FELKER, et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
California state prisoner James Lee Evans appeals from the district court’s
denial of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under
28 U.S.C. § 2253, and we affirm.
*
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).
Evans contends that his counsel was constitutionally deficient in failing to
advise him of the maximum sentence that he faced by entering a plea directly to the
court. This claim fails because the state court reasonably determined that Evans
was aware of the maximum sentence when he entered his plea; thus, Evans cannot
establish prejudice under Strickland v. Washington, 466 U.S. 668, 687 (1984). See
28 U.S.C. § 2254(d).
Evans also contends that counsel rendered deficient performance in
predicting that he was highly unlikely to receive a sentence of more than 14 years
if he entered a plea to the court. This claims fails because Evans has failed to
establish that there is no “reasonable argument that counsel satisfied Strickland’s
deferential standard.” See Harrington v. Richter, 131 S. Ct. 770, 788 (2011).
To the extent that Evans argues that his plea was not knowing and voluntary,
as required by due process, we decline to expand the certificate of appealability to
consider that claim, as Evans has neither followed the procedure required by our
rules, see 9th Cir. R. 22-1(e), nor made a substantial showing of the denial of a
constitutional right, see 28 U.S.C. § 2253(c)(2).
AFFIRMED.
2 09-56012