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NOT FOR PUBLICATION JAN 11 2012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 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 (1984). As a result, he could not

establish that the state court’s conclusion to that effect was unreasonable. See

Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (noting the double deference

owed to a state court determination of no ineffective assistance of counsel). The

request to expand the certificate of appealability is denied.

AFFIRMED.

2

FILED

Davis v. Belleque No. 10-36035 JAN 11 2012

MOLLY C. DWYER, CLERK

PAEZ, Circuit Judge, concurring: U.S. COURT OF APPEALS

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 (1984), applies to formal, noncapital sentencing proceedings

“involv[ing] 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. The Court also explained that it “need not consider the role of counsel in an

ordinary sentencing, which may involve informal proceedings and standardless

discretion in the sentencer, and hence may require a different approach to the

definition of constitutionally effective assistance.” Id. at 686.

Subsequently, in Glover v. United States, the Supreme Court held that a

defendant suffered prejudice when his attorney’s alleged deficient performance

resulted in the imposition of a higher sentence for noncapital, federal offenses. 531

U.S. 198, 200 (2001). In so holding, the Court applied Strickland. Id. at 200 (“We

must decide whether this would be ‘prejudice’ under [Strickland].”). Notwithstanding the Court’s statements in Glover, we held that the Supreme

Court has not extended Strickland to noncapital sentencing proceedings. Cooper-

Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005); Davis, 443 F.3d at 1158.

In Davis, Judge Graber authored a compelling concurrence in which she concluded

that “the best way to read [Strickland and Glover] together is to say that Strickland

applies to a noncapital sentencing that is ‘formal’ and that involves findings or

conclusions that provide a standard for the imposition of sentence.” Davis, 443

F.3d at 1159 (Graber, J., concurring). I agree.1

As noted in our memorandum disposition, however, the state court correctly

interpreted the relevant state law and therefore imposed a lawful sentence. There is

simply no showing that Davis’s counsel performed deficiently or that he suffered

any prejudice. Thus, even if we were to apply Strickland, Davis would not be

entitled to habeas relief. Under these circumstances, I do not consider this to be a

worthy case for en banc review, which would be necessary to reconsider our

holding in Davis. Therefore, I concur in the court’s affirmance of the district

court’s denial of Davis’s habeas petition.

1 Although Premo v. Moore, __ U.S. __, 131 S. Ct. 733, 737-38, 742 (2011), was decided after the state court denied Davis’s petition for post- conviction relief, it offers further support for this conclusion.

2