U.S. Court of Appeals for the Ninth Circuit, 2007

Angel v. Roe

U.S. Court of Appeals for the Ninth Circuit · Decided November 15, 2007 · Fernandez, McKeown, Trager

256 F. App'x 907

Opinion of the Court

MEMORANDUM***

Gary Gene Angel appeals the district court’s denial of his petition for habeas corpus relief. See 28 U.S.C. § 2254. We affirm.

Angel seeks habeas corpus relief on the basis that counsel was ineffective because of a failure to properly pursue plea negotiations. Principally, he alleges that counsel improperly failed to pick up a written plea offer from the prosecutor’s office in time to bi'ing it to Angel’s attention so that he could consider accepting it.1

To obtain relief on the basis of ineffective assistance of counsel, Angel must show both that counsel’s representation was deficient,2 and that there was a “reasonable probability” that in the absence of counsel’s alleged error the result of the proceeding would have been different.3 The state courts determined that counsel was not ineffective.4 In order to overturn *908the state court decisions, we would, at the very least, have to decide that counsel was ineffective. More than that, we would have to determine that the state courts either unreasonably determined the facts,5 or that they made decisions that were contrary to or an unreasonable application of federal law.6 And more than that, a determination that the state courts erred would not be enough; we would have to determine that their application of the law was “not only erroneous, but objectively unreasonable.” Yarborough v. Gentry, 540 U.S. 1, 5, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003) (per curiam); see also Middleton v. McNeil, 541 U.S. 433, 436, 124 S.Ct. 1830, 1832, 158 L.Ed.2d 701 (2004) (per curiam); Nunes, 350 F.3d at 1051.

On this record, we cannot say that the state courts unreasonably determined that counsel’s performance was not deficient. That being so, we need go no further and must affirm.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

. Counsel was not made aware of the fact that the written plea offer was available until after it had expired.

. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To be deficient, counsel’s performance must have fallen "below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064.

. Id. at 694, 104 S.Ct. at 2068.

. The Strickland test applies to claims arising out of the plea process. See Hill v. Lockhart, 474 U.S. 52, 57-59, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985); Turner v. Calderon, 281 F.3d 851, 879 (9th Cir. 2002).

. See 28 U.S.C. § 2254(d)(2); see also Williams v. Taylor, 529 U.S. 362, 386, 120 S.Ct. 1495, 1509, 146 L.Ed.2d 389 (2000).

. See 28 U.S.C. § 2254(d)(1); see also Lockyer v. Andrade, 538 U.S. 63, 73, 75, 123 S.Ct. 1166, 1173, 1174, 155 L.Ed.2d 144 (2003); Nunes v. Mueller, 350 F.3d 1045, 1051 (9th Cir. 2003).

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