Willie Hartwell v. Dwight Neven

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 14 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WILLIE LAMAR HARTWELL, No. 10-17728
Petitioner - Appellant, D.C. No. 2:07-cv-01371-KJD-LRL
v.
MEMORANDUM*
DWIGHT NEVEN, Warden and
ATTORNEY GENERAL OF THE STATE
OF NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted February 14, 2012
San Francisco, California
Before: THOMAS, FISHER, and IKUTA, Circuit Judges.
The Nevada state court’s determination that Willie Lamar Hartwell was not
denied his Sixth Amendment right to the effective assistance of counsel was not an
unreasonable application of clearly established Supreme Court precedent because
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Hartwell cannot show he suffered prejudice due to any deficiency of counsel. 28
U.S.C. § 2254(d); see Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000). Even
assuming that Hartwell’s indications triggered his counsel’s duty to consult, the
Nevada state court could reasonably conclude that Hartwell was not deprived of an
appeal, given that the Nevada Supreme Court directed the state trial court to
consider all of Hartwell’s “direct appeal” claims even if it determined that counsel
was not ineffective; Hartwell argued his claims to the state trial court with the
assistance of counsel; the state trial court rejected those claims on the merits; and
the Nevada Supreme Court rejected the only claim Hartwell elected to raise on
appeal. See id. at 483.
We also reject Hartwell’s argument that the Nevada sentencing court
violated his federal due process rights by enhancing his sentence under Nevada’s
habitual criminal statute, and therefore need not reach the question whether this
claim was exhausted in state court. See 28 U.S.C. § 2254(b)(2). The Nevada
Supreme Court could reasonably determine, pursuant to state law, that Hartwell
effectively stipulated to at least five prior felony convictions. See Hodges v. State,
78 P.3d 67, 70 (Nev. 2003). Moreover, even if the Nevada Supreme Court erred,
an error of state law such as this one, which does not rise to the level of a federal
due process violation, cannot serve as the basis for federal habeas relief. See
2
Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011); Estelle v. McGuire, 502 U.S. 62,
67–68 (1991).
AFFIRMED.
3