NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

OCT 17 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ROBERT CHARLES JONES, No. 17-15575

Petitioner-Appellant, D.C. No. 3:11-cv-00467-MMD-

WGC

v.

JACK PALMER; ATTORNEY MEMORANDUM*

GENERAL FOR THE STATE OF

NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding

Argued and Submitted October 9, 2018 San Francisco, California

Before: D.W. NELSON, W. FLETCHER, and BYBEE, Circuit Judges.

Robert Jones appeals the dismissal of his federal habeas petition. We have

jurisdiction under 28 U.S.C. §§ 1291, 2253. We review the district court’s order de

novo. Dickens v. Ryan, 740 F.3d 1302, 1309 (9th Cir. 2014) (en banc). We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Jones was convicted of first-degree murder for the 1978 murder of Rayfield

Brown. At the penalty phase, Jones was sentenced to death. On October 17, 1985,

the Nevada Supreme Court affirmed Jones’s conviction but vacated his death

sentence, finding that the prosecutor had misstated the powers of the pardon board.

On remand, the state filed notice of intent to seek the death penalty again. On March

2, 1987, Jones’s counsel wrote a letter to Jones advising him to accept an offer from

the District Attorney’s Office to stipulate to a sentence of life without parole. Citing

available statistics and qualifying his prediction throughout the letter, Jones’s counsel

concluded that Jones “would most likely be able to have a life outside at some point”

even if Jones agreed to a stipulated life sentence. On March 23, 1987, Jones agreed

to a stipulated sentence of life without the possibility of parole and waived his right

to a penalty hearing.

Jones’s amended petition for writ of habeas corpus raised two grounds: (1) a

claim under Carter v. Kentucky, 450 U.S. 288 (1981)1 and (2) an ineffective assistance

of counsel claim based on his counsel’s advice that he agree to a stipulated

life-without-parole sentence. The district court denied Jones’s petition and granted

a certificate of appealability on the ineffectiveness ground.

1 The district court did not issue a certificate of appealability with respect to this claim, and we decline to expand the certificate to reach this issue. Mardesich v. Cate, 668 F.3d 1164, 1169 n.4 (9th Cir. 2012). 2 An ineffective assistance of counsel claim involves a two-prong inquiry. “First,

the defendant must show that counsel’s performance was deficient.” Strickland v.

Washington, 466 U.S. 668, 687 (1984). “Second, the defendant must show that the

deficient performance prejudiced the defense.” Id. With respect to erroneous

sentencing advice and deficient performance, “a mere inaccurate prediction, standing

alone, [does] not constitute ineffective assistance[.]” Iaea v. Sunn, 800 F.2d 861, 865

(9th Cir. 1986) (citing McMann v. Richardson, 397 U.S. 759, 770 (1970) and Wellnitz

v. Page, 420 F.2d 935, 936 (10th Cir. 1970) (per curiam)). Rather, “erroneous

predictions regarding a sentence are deficient only if they constitute ‘gross

mischaracterization of the likely outcome’ of a plea bargain ‘combined with . . .

erroneous advice on the probable effects of going to trial.’” United States v. Keller,

902 F.2d 1391, 1394 (9th Cir. 1990) (quoting Iaea, 800 F.2d at 865).

Jones argues that his counsel’s prediction that he would “most likely” be

released at some point after stipulating to a life without parole sentence constituted

deficient performance. But read as a whole, counsel’s letter urging Jones to agree to

the stipulated sentence did not grossly mischaracterize the likely outcome of his

agreement to the stipulation, and counsel did not give erroneous advice on the

probable effects of going to trial. Jones’s counsel consulted the available information

about the likelihood that Jones might eventually receive a pardon. Though he may

3 have been overly optimistic in his assessment of Jones’s chances of being released

from prison, Jones’s counsel qualified his prediction significantly in the letter and

accurately described the likely outcome of a resentencing proceeding.

AFFIRMED.

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