U.S. Court of Appeals for the Ninth Circuit, 2014

Robert Menefee v. Leland McEwen

Robert Menefee v. Leland McEwen
U.S. Court of Appeals for the Ninth Circuit · Decided December 11, 2014 · O'Scannlain, Fisher, Hurwitz
587 F. App'x 417

Robert Menefee v. Leland McEwen

Opinion

MEMORANDUM **

Robert James Menefee appeals the denial of his petition for habeas corpus under 28 U.S.C. § 2254. Reviewing the district court’s determination de novo, see Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014), we affirm.

The state court determined that Mene-fee was not prejudiced under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by his attorney’s failure to inform him that he was subject to a five-year sentencing enhancement for a prior conviction. Menefee argues that, had he been made aware of this enhancement, he would have accepted a plea offer for a lower sentence than he ultimately received. Based on the record, the state court found that Menefee was made aware during a courtroom exchange between the prosecutor and trial judge, in Menefee’s presence, that he faced 13 years in prison for his charges — a sentence that necessarily included a five-year enhancement. This was not an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). Because Menefee had rejected the plea deal he was offered with knowledge of his exposure to the five-year sentencing enhancement, the state court concluded he was not prejudiced by his attorney’s lack of advice. This determination was not “contrary to, or ... an unreasonable application of’ Strickland. § 2254(d)(1).

AFFIRMED.

**

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

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