Milton Plummer v. E. McDaniel

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 20 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MILTON D. PLUMMER, an individual, No. 09-15587
Petitioner - Appellant, D.C. No. 3:05-cv-00610-HDM
v.
MEMORANDUM*
E.K. MCDANIEL, Warden and NEVADA
ATTORNEY GENERAL
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, Senior District Judge, Presiding
Argued and Submitted June 16, 2011
San Francisco, California
Before: SCHROEDER and BEA, Circuit Judges, and SAMMARTINO, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Janis L. Sammartino, United States District Judge for
the Southern District of California, sitting by designation.
Milton Plummer appeals the dismissal of his 28 U.S.C. § 2254 petition for a
writ of habeas corpus. A certificate of appealability was granted with respect to
two issues: (1) whether Plummer properly exhausted his claim that his guilty plea
was coerced and not entered knowingly, intelligently, or voluntarily; and (2)
whether the district court properly concluded that Plummer’s claim regarding the
denial of his motion to withdraw his guilty plea failed to state a claim cognizable
on federal habeas review. We have jurisdiction under 28 U.S.C. § 2253, and we
affirm.
Plummer did not exhaust his coercion claim. The claim was never fairly
presented to the Nevada Supreme Court. O’Sullivan v. Boerckel, 526 U.S. 838, 848
(1999). The issue addressed on direct appeal concerned the adequacy of Plummer’s
plea canvass. His state habeas petition presented the issue whether he understood
his plea. And the pro per documents sent to the Nevada Supreme Court were never
filed or considered.
We affirm the district court’s decision to deny habeas relief based on the
second claim because this claim was also not exhausted. O’Guinn v. Lovelock
Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir. 2007) (“We may affirm on any ground
present in the record.”).
2
We do not address Petitioner’s uncertified claim because he failed to
“ma[k]e a substantial showing of a denial of a constitutional right” to warrant
issuance of a certificate of appealability. Rhoades v. Henry, 598 F.3d 511, 518 (9th
Cir. 2010).
AFFIRMED.
3