Kam Mills v. Bernard Warner , 628 F. App'x 531 ( 2016 )

FILED
NOT FOR PUBLICATION
JAN 08 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAM ALAN MILLS, No. 14-35568
Petitioner - Appellant, D.C. No. 2:13-cv-05140-JTR
v.
MEMORANDUM*
BERNARD WARNER,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Submitted December 10, 2015**
Seattle, Washington
Before: McKEOWN and TALLMAN, Circuit Judges and LEFKOW,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Joan Humphrey Lefkow, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
Kam Alan Mills (“Mills”) appeals the district court’s denial of the
ineffective assistance of counsel claim in his 28 U.S.C. § 2254 petition as
procedurally defaulted. We granted Mills a limited certificate of appealability on
“whether the district court properly ruled that [his] ineffective assistance of trial
counsel claim is procedurally defaulted.” We have jurisdiction pursuant to
28 U.S.C. §§ 1291 and 2253. We review de novo the district court’s denial of a
habeas petition, Lopez v. Schriro, 491 F.3d 1029, 1036 (9th Cir. 2007), and we
affirm.
A federal court generally cannot grant a habeas petition that has been
procedurally defaulted in state court. Coleman v. Thompson, 501 U.S. 722, 729-30
(1991). However, “[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of a claim of
ineffective assistance at trial.” Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). To
establish cause under Martinez, the petitioner must show that “(1) the underlying
ineffective assistance of trial counsel claim is ‘substantial’; (2) the petitioner was
not represented or had ineffective counsel during the [post-conviction relief
(‘PCR’)] proceeding; (3) the state PCR proceeding was the initial review
proceeding; and (4) state law required (or forced as a practical matter) the
petitioner to bring the claim in the initial review collateral proceeding.” Dickens v.
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Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (en banc) (citing Trevino v. Thaler, 133
S. Ct. 1911, 1918 (2013)).
Only the first element is at issue. After reviewing the briefs and record, we
conclude that because Mills does not have an ineffective assistance of trial counsel
claim under Lafler v. Cooper, 132 S. Ct. 1376, 1384-85 (2012) (holding there is no
ineffective assistance of trial counsel claim when a rejected plea, if accepted,
would not result in a less severe judgment or sentence), he cannot show that
“reasonable jurists could debate” whether his habeas petition should have been
granted. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Accordingly, Mills does
not have a “substantial” underlying ineffective assistance of trial counsel claim.
Martinez, 132 S. Ct. at 1318.
AFFIRMED.
3