FILED
NOT FOR PUBLICATION SEP 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KENNETH PATRICK HIBBLER, No. 11-16683
Petitioner - Appellant, D.C. No. 3:07-cv-00467-RCJ-VPC
v.
MEMORANDUM *
JAMES BENEDETTI and NEVADA
ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted June 12, 2012
San Francisco, California
Before: D.W. NELSON, RAWLINSON, and IKUTA, Circuit Judges.
The Nevada Supreme Court did not make an unreasonable determination of
the facts in light of the evidence before the state court, or unreasonably apply
clearly established Supreme Court precedent, when it rejected Kenneth Patrick
Hibbler’s claims that he was denied his Sixth Amendment right to effective
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
assistance of counsel due to counsel’s: (1) misadvising him about the availability
of an insanity or diminished capacity defense, and (2) failing to present Hibbler’s
request to withdraw his guilty plea.1 See 28 U.S.C. § 2254(d).
First, the state court reasonably determined that Hibbler’s allegation that
counsel told him that no insanity defense existed in Nevada was incredible in light
of the record, which conclusively showed that counsel was actively pursuing a
potential insanity defense prior to the plea. This finding was not rendered
unreasonable by the state court’s failure to hold an evidentiary hearing because the
state court reasonably concluded that Hibbler’s allegations were belied by the
record. See United States v. Hibbler, ___ F.3d ____ (9th Cir. 2012); Perez v.
Rosario, 459 F.3d 943, 950 (9th Cir. 2006). Moreover, the state court did not
unreasonably apply Supreme Court precedent in concluding that any incorrect
advice by counsel would not have prejudiced Hibbler because it would not have
been rational for Hibbler to insist on going to trial on much more serious charges
based on a weak defense. See Padilla v. Kentucky, 130 S. Ct. 1473, 1485–86
(2010).
1
We address Hibbler’s ineffective assistance claim based on counsel’s
allowing Hibbler to plead guilty at a time when he was allegedly incompetent in a
separate opinion filed concurrently with this memorandum disposition.
2
Second, the state court’s finding that Hibbler assented to Ungaro’s decision
not to move to withdraw the plea was reasonable given that (1) Ungaro was
appointed, in part, to discuss withdrawing the plea with Hibbler; and (2) Hibbler
confirmed that he wished to retain Ungaro as counsel immediately after Ungaro
stated that she saw no basis for withdrawing the plea. The state court’s alternative
conclusion, that any deficiency resulting from Ungaro’s failure to move to
withdraw the plea was not prejudicial, was not an unreasonable application of
Strickland v. Washington, 466 U.S. 668 (1984). The state court reasonably
concluded that there was no reasonable probability that a motion to withdraw the
plea would have been successful since Hibbler adduced no credible evidence that
the plea was not knowing and voluntary. See Molina v. State, 87 P.3d 533, 537–38
(Nev. 2004) (pre-sentence motion to withdraw plea properly denied because
totality of circumstances showed that defendant voluntarily, knowingly, and
intelligently entered the plea agreement).
The district court properly denied Hibbler’s request for an evidentiary
hearing. An evidentiary hearing is unnecessary when the state court’s decision
withstands scrutiny under § 2254(d). See Cullen v. Pinholster, 131 S. Ct. 1388,
1400 & n.7 (2011).
AFFIRMED.
3