Pablo Ceballos v. Brian Williams ( 2013 )

FILED
NOT FOR PUBLICATION JUN 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PABLO CEBALLOS, No. 11-16104
Petitioner - Appellant, D.C. No. 2:07-cv-01023-GMN-
PAL
v.
BRIAN WILLIAMS; NEVADA MEMORANDUM *
ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Submitted June 14, 2013 **
San Francisco, California
Before: SCHROEDER, RIPPLE ***, and CALLAHAN, Circuit Judges.
*
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 Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
Petitioner-Appellant Pablo Ceballos appeals the dismissal of his petition for
a writ of habeas corpus. The district court had jurisdiction under 28 U.S.C. § 2254,
we have jurisdiction under 28 U.S.C. § 2253, and we affirm.1
Assuming without deciding that Martinez v. Ryan, 132 S. Ct. 1309 (2012),
applies to state post-conviction proceedings in Nevada, see Trevino v. Thaler, 133
S. Ct. 1911 (2013), Ceballos fails to establish that his post-conviction counsel
rendered constitutionally ineffective assistance when he did not press, in the initial
post-conviction proceedings, Ceballos’s claim that his trial lawyer was ineffective
when she failed to resolve his case according to an alleged misdemeanor plea deal
from the State. Ceballos’s post-conviction counsel, after reviewing the record and
seeking his client’s input, reasonably determined that the trial ineffective-
assistance-of-counsel claim was meritless; apart from Ceballos’s assertions, there
was no evidence that such a deal existed or that Ceballos had accepted it.
Ceballos’s counsel also reasonably determined that Ceballos faced a possible
perjury charge if an evidentiary hearing was held. See Wiggins v. Smith, 539 U.S.
510, 521 (2003) (“‘[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable.’” (quoting
1
Ceballos’s motion for judicial notice (ECF No. 17) is granted.
Respondents-Appellees Brian Williams, et al.’s motion to strike (ECF No. 21) is
denied.
2
Strickland v. Washington, 466 U.S. 668, 690 (1984)); Sexton v. Cozner, 679 F.3d
1150, 1157 (9th Cir. 2012) (“Counsel is not necessarily ineffective for failing to
raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for
failing to raise a claim that is meritless.” (citations omitted)). Ceballos thus fails to
establish cause and prejudice to excuse his procedural default under Martinez.
AFFIRMED.
3