Christopher Wood v. Dwight Neven

FILED
NOT FOR PUBLICATION
DEC 08 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER WOOD, No. 14-15589
Petitioner - Appellant, D.C. No. 2:11-cv-01667-JAD-
GWF
v.
DWIGHT NEVEN, Warden and MEMORANDUM*
ATTORNEY GENERAL OF THE STATE
OF NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted May 12, 2015
San Francisco, California
Before: KOZINSKI, PAEZ, and CLIFTON, Circuit Judges.
Christopher Wood appeals the district court’s dismissal of his habeas
petition, alleging, inter alia, that his counsel at the time of his plea was ineffective
for failing to advise him of the availability of an appeal. The district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
dismissed claim E(3) on the grounds that it was untimely and unexhausted. The
parties continue to dispute whether claim E(3) is exhausted and relates back to
Wood’s original federal habeas petition. Under 28 U.S.C. § 2254(b)(2) a habeas
petition may be denied on the merits, notwithstanding the failure of the petitioner
to exhaust his claims in state court. This is a proper case to invoke our authority
under § 2254(b)(2), because Wood has suffered no prejudice and, therefore, his
ineffective assistance of counsel claim must fail. See Strickland v. Washington,
466 U.S. 668, 687 (1984). It is thus “perfectly clear” that his petition is meritless.
See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Because we may affirm
the district court on “any basis shown by the record,” Dunne v. Henman, 875 F.2d
244, 247 (9th Cir. 1989), we deny Wood’s petition on its merits rather than on the
district court’s procedural analysis.
Wood seeks to retain the benefit of his plea bargain. Thus, he only
challenges the application of Nevada’s “small” habitual criminal sentencing
enhancement, Nev. Rev. Stat. § 207.010, because Wood argues that if he prevails,
Nevada law would permit him to maintain his original sentence and excise only the
enhancement.
The Nevada state courts, however, already considered this sole underlying
claim and rejected it. Wood filed a pro se state habeas petition alleging that his
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counsel was ineffective for failing to object to the district court’s imposition of the
enhancement, notwithstanding the state’s untimely filing of the notice of habitual
criminality. In assessing that petition, the Nevada Supreme Court concluded that
Wood’s counsel waived the notice requirement as part of a plea bargain from
which Wood gained “substantial benefit”; so substantial, in fact, that Wood “failed
to demonstrate a reasonable probability that he would not have pleaded guilty and
would have insisted on going to trial had counsel not waived the timely notice.”
Thus, Wood has received review of the sole claim he says he would appeal
and would have appealed were it not for his attorney’s faulty advice. Even if his
attorney were ineffective, Wood can show no prejudice, and it is thus “perfectly
clear” that his petition is meritless. Cassett, 406 F.3d at 624. Having concluded
that claim E(3) fails on the merits, we need not address Wood’s remaining
assignments of error.
AFFIRMED.
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