Robert Menefee v. Leland McEwen

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 11 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROBERT JAMES MENEFEE, No. 13-17046
Petitioner - Appellant, D.C. No. 2:12-cv-00512-JKS
v.
MEMORANDUM*
L. S. MCEWEN, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, Senior District Judge, Presiding
Submitted December 9, 2014**
San Francisco, California
Before: O’SCANNLAIN, FISHER and HURWITZ, Circuit Judges.
Robert James Menefee appeals the denial of his petition for habeas corpus
under 28 U.S.C. § 2254. Reviewing the district court’s determination de novo, see
Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014), we affirm.
*
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 state court determined that Menefee was not prejudiced under
Strickland v. Washington, 466 U.S. 668 (1984), by his attorney’s failure to inform
him that he was subject to a five-year sentencing enhancement for a prior
conviction. Menefee argues that, had he been made aware of this enhancement, he
would have accepted a plea offer for a lower sentence than he ultimately received.
Based on the record, the state court found that Menefee was made aware during a
courtroom exchange between the prosecutor and trial judge, in Menefee’s
presence, that he faced 13 years in prison for his charges – a sentence that
necessarily included a five-year enhancement. This was not an “unreasonable
determination of the facts.” 28 U.S.C. § 2254(d)(2). Because Menefee had
rejected the plea deal he was offered with knowledge of his exposure to the five-
year sentencing enhancement, the state court concluded he was not prejudiced by
his attorney’s lack of advice. This determination was not “contrary to, or . . . an
unreasonable application of” Strickland. § 2254(d)(1).
AFFIRMED.
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