FILED
NOT FOR PUBLICATION OCT 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN CASWELL McCARVILL, No. 11-35615
Petitioner - Appellant, D.C. No. 3:03-cv-00756-ST
v.
MEMORANDUM*
BRIAN BELLEQUE,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Submitted October 11, 2012**
Portland, Oregon
Before: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.
Brian McCarvill appeals from the district court’s denial of his petition for
habeas corpus. We review the district court’s denial of a habeas petition de novo.
Ybarra v. McDaniel, 656 F.3d 984, 989 (9th Cir. 2011). 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).
McCarvill complains that he suffered ineffective assistance of counsel that
caused him to decline a plea offer that would have resulted in a much shorter
prison term. We agree with the reasoning of the district court in its rejection of
that claim. Notably, the evidence in the record did not support the contention that
McCarvill would have accepted the plea offer but for the allegedly erroneous
advice he received from his counsel. He rejected favorable plea offers even after
the jury returned its guilty verdict and he had obtained new counsel.
McCarvill also contends that the district court erred when it dismissed his
petition without giving him a chance to brief his other claims. But McCarvill had
an opportunity to present his arguments and failed to do so. It is not the obligation
of the district court to search out arguments that the petitioner does not present
when he has the chance. Indeed, McCarvill similarly failed in his argument to us,
for in arguing that he should have been given an additional opportunity to argue his
other claims, he did not identify what those claims were, let alone establish that he
suffered any prejudice because any of the claims had merit. It is not enough to
assert that he might have another argument. He must demonstrate that he was
prejudiced by the district court’s treatment, and he did not do so.
AFFIRMED.
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