Eugene Linder v. Bill Donat , 472 F. App'x 825 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 01 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EUGENE ANTHONY LINDER, No. 10-16407
Plaintiff - Appellant, D.C. No. 3:07-cv-00425-HDM-
RAM
v.
BILL DONAT and NEVADA MEMORANDUM *
ATTORNEY GENERAL,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Argued and Submitted April 20, 2012
San Francisco, California
Before: McKEOWN and N.R. SMITH, Circuit Judges, and BENITEZ, District
Judge.**
Eugene Anthony Linder, a Nevada state prisoner, appeals the district court’s
denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his murder
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
conviction and sentence of life with possibility of parole after ten years. Linder
contends his guilty plea, entered pursuant to North Carolina v. Alford, 400 U.S. 25(1970), was not knowing, intelligent, and voluntary, and that his counsel rendered
ineffective assistance by misadvising him as to the potential sentence as a result of
the Alford plea. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.1
Linder’s statements at the plea colloquy and in the guilty plea agreement,
coupled with the charges in the information, provided sufficient “strong factual
basis,” see Alford, 400 U.S. at 38, from which a reasonable jury could find that
Linder strangled the victim and that he did so with malice aforethought. See
United States v. Neel, 547 F.2d 95, 96 (9th Cir. 1976) (per curiam) (“The court
need not be convinced beyond a reasonable doubt that an accused is guilty. It need
only be convinced that there is sufficient evidence to justify the reaching of such a
conclusion.”). The Nevada Supreme Court’s conclusion that this evidence was
sufficient to support a charge of second degree murder was not contrary to, or an
unreasonable application of, clearly established federal law. See 28 U.S.C.
§ 2254(d)(1). Moreover, Linder’s statements in the plea agreement and in response
to the trial court’s questions at the plea colloquy indicated his “clearly expressed
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our disposition.
2 10-16407
desire” to enter the plea, see Alford, 400 U.S. at 38, especially in light of the
mandatory life sentence without possibility of parole or with possibility of parole
after twenty years that he might have received if he was convicted of first degree
murder. See id. at 31 (an Alford plea must represent “a voluntary and intelligent
choice among the alternative courses of action open to the defendant”).
Similarly, considering the options available to Linder at the time of the plea
colloquy, the Nevada Supreme Court’s conclusion that he suffered no prejudice
from his counsel’s alleged misadvisement as to the potential sentence was not
unreasonable. First, there was no prejudice because the plea agreement clearly
informed Linder that he could be sentenced to life imprisonment with a possibility
for parole after ten years. See Womack v. Del Papa, 497 F.3d 998, 1003 (9th Cir.
2007). Second, in light of the State’s “formidable” case against him, see Premo v.
Moore, 131 S. Ct. 733, 744 (2011), Linder failed to show “a reasonable probability
that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” See Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Linder’s motion to expand the certificate of appealability is denied. See 28
U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
Linder’s request for judicial notice is granted.
AFFIRMED.
3 10-16407