Johnny Hamilton v. E.K. McDaniel

MEMORANDUM

For the second time, Johnny Hamilton, a Nevada state prisoner, appeals from the district court’s denial of his petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253 . We affirm.

We remanded Hamilton’s appeal from the district court’s first denial of his petition for a writ of habeas corpus for the district court to consider whether, under Roe v. Flores-Ortega, 528 U.S. 470, 477-81 , 120 S.Ct. 1029 , 145 L.Ed.2d 985 (2000), Hamilton’s trial counsel was required to consult with Hamilton about filing an appeal and, if he was, whether he did so. The district court reasoned that two decisions of the U.S. Supreme Court issued after our remand were relevant to its consideration: (1) Harrington v. Richter, 562 U.S. 86 , 131 S.Ct. 770, 786 , 178 L.Ed.2d 624 (2011), holding that “a habeas court must determine what arguments or theories supported or ... could have supported[] the state court’s decision”; and (2) Cullen v. Pinholster, - U.S. -, 131 S.Ct. 1388, 1398 , 179 L.Ed.2d 557 (2011), holding that a federal court reviewing a state court’s decision under 28 U.S.C. § 2254 (d)(1) is limited to considering the factual record that was before the state…