Skillful Davis v. Brian Belleque

FILED

NOT FOR PUBLICATION JAN 11 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SKILLFUL DAVIS, No. 10-36035

Petitioner - Appellant, D.C. No. 3:07-cv-00901-ST

v.

MEMORANDUM*

BRIAN BELLEQUE, Superintendant, Oregon State Penitentiary,

Respondent - Appellee.

Appeal from the United States District Court for the District of Oregon Ancer L. Haggerty, District Judge, Presiding

Argued and Submitted November 14, 2011 Portland, Oregon

Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.

Skillful Davis appeals the district court’s denial of his petition for habeas

corpus. We affirm.

Davis’s petition alleges ineffective assistance of counsel (“IAC”) in

connection with his state court sentencing. As we held in Davis v. Grigas, 443

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. F.3d 1155, 1158 (9th Cir. 2006), we cannot grant habeas relief under 28 U.S.C.

§ 2254(d)(1) based on a claim of noncapital sentencing IAC because there is no

clearly…

concurring:

I concur in the disposition. I write separately only to express my agreement with Judge Graber’s concurrence in Davis v. Grigas that Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), applies to formal, noncapital sentencing proceedings “involving] findings or conclusions that provide a standard for the imposition of sentence.” 443 F.3d 1155, 1159 (9th Cir.2006) (Graber, J., concurring). Nonetheless, Davis’s claim here fails because he cannot satisfy either prong of the Strickland test.

In Strickland , the Supreme Court established the constitutionally-required standard for effective assistance of counsel in capital sentencing cases. 466 U.S. at 687 , 104 S.Ct. 2052 . The Court also explained that it “need not consider the role of counsel in an ordinary sentencing, which may involve informal proceedings and standard-less discretion in the sentencer, and hence may require a different approach to the definition of constitutionally effective assistance.” Id. at 686 , 104 S.Ct. 2052 .

Subsequently, in Glover v. United States, the Supreme Court held that a defendant suffered prejudice when his attorney’s alleged deficient performance…

MEMORANDUM *

Skillful Davis appeals the district court’s denial of his petition for habeas corpus. We affirm.

Davis’s petition alleges ineffective assistance of counsel (“IAC”) in connection with his state court sentencing. As we held in Davis v. Grigas, 443 F.3d 1155, 1158 (9th Cir.2006), we cannot grant habeas relief under 28 U.S.C. § 2254 (d)(1) based on a claim of noncapital sentencing IAC because there is no clearly established United States Supreme Court precedent applicable to that situation. The Supreme Court has not established any such precedent since that time.

Davis did not present a sufficient factual basis for an IAC claim, in any event. The Oregon post-conviction court denied his petition for relief based on its conclusion that his sentence was legal under state law. Based on that conclusion, it does not appear that Davis could satisfy either prong of the two-prong test for IAC in Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). As a result, he could not establish that the state court’s conclusion to that effect was unreasonable. See Harrington v. Richter, — U.S. -, -, 131 S.Ct. 770, 788 , 178 L.Ed.2d 624 (2011) (noting the…