Emilio Blea v. Mark Nooth , 472 F. App'x 423 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EMILIO J. BLEA, No. 09-36129
Petitioner - Appellant, D.C. No. 3:07-cv-01540-BR
v.
MEMORANDUM *
MARK NOOTH; SNAKE RIVER
CORRECTIONAL INSTITUTION,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted May 8, 2012 **
Portland, Oregon
Before: TASHIMA, TALLMAN, and IKUTA, Circuit Judges.
Petitioner-appellant Emilio J. Blea (“Blea”) appeals the district court’s
denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction for
*
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).
aggravated murder, in violation of Or. Rev. Stat. § 163.095, and robbery in the first
degree, in violation of Or. Rev. Stat. § 164.415. Blea claims that the advice
provided by his trial counsel was constitutionally inadequate, thereby rendering his
guilty plea to aggravated murder unknowing and involuntary. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
The Oregon state court’s rejection of Blea’s claim was neither contrary to
nor an unreasonable application of clearly established federal law, and was not
based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); Hill
v. Lockhart, 474 U.S. 52, 58–59 (1985). According to Blea, his counsel failed to
explain that aggravated murder requires intent to kill the victim and, further, that if
he lacked such intent, he could only be convicted of felony murder (a lesser-
included offense). But Blea’s self-serving statements during post-conviction
proceedings cannot overcome his admissions before the trial court and in his Plea
Petition to the contrary, including that he understood the charges against him and
that he had “personally and intentionally caused the death” of the victim. See
Womack v. Del Papa, 497 F.3d 998, 1004 (9th Cir. 2007) (“Solemn declarations in
open court carry a strong presumption of verity.” (internal quotation marks and
citation omitted)).
AFFIRMED.
2