Pablo Ceballos v. Brian Williams

FILED NOT FOR PUBLICATION JUN 20 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT PABLO CEBALLOS, No. 11-16104 Petitioner - Appellant, D.C. No. 2:07-cv-01023-GMN- PAL v. BRIAN WILLIAMS; NEVADA MEMORANDUM * ATTORNEY GENERAL, Respondents - Appellees. Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding Submitted June 14, 2013 ** San Francisco, California Before: SCHROEDER, RIPPLE ***, and CALLAHAN, Circuit Judges. * 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). *** The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit, sitting by designation. Petitioner-Appellant Pablo Ceballos appeals the dismissal of his petition for a writ of habeas corpus. The district court had jurisdiction under 28 U.S.C. § 2254, we have jurisdiction under 28 U.S.C. § 2253, and we affirm.1 Assuming without deciding that Martinez v. Ryan, 132 S. Ct. 1309 (2012), applies to state post-conviction proceedings in Nevada, see Trevino v. Thaler, 133 S. Ct. 1911 (2013), Ceballos fails to establish that his post-conviction counsel rendered constitutionally ineffective assistance when he did not press, in the initial post-conviction proceedings, Ceballos’s claim that his trial lawyer was ineffective when she failed to resolve his case according to an alleged misdemeanor plea deal from the State. Ceballos’s post-conviction counsel, after reviewing the record and seeking his client’s input, reasonably determined that the trial ineffective- assistance-of-counsel claim was meritless; apart from Ceballos’s assertions, there was no evidence that such a deal existed or that Ceballos had accepted it. Ceballos’s counsel also reasonably determined that Ceballos faced a possible perjury charge if an evidentiary hearing was held. See Wiggins v. Smith, 539 U.S. 510, 521 (2003) (“‘[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.’” (quoting 1 Ceballos’s motion for judicial notice (ECF No. 17) is granted. Respondents-Appellees Brian Williams, et al.’s motion to strike (ECF No. 21) is denied. 2 Strickland v. Washington, 466 U.S. 668, 690 (1984)); Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“Counsel is not necessarily ineffective for failing to raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for failing to raise a claim that is meritless.” (citations omitted)). Ceballos thus fails to establish cause and prejudice to excuse his procedural default under Martinez. AFFIRMED. 3