Ricky Webb v. Mike Budge

FILED
NOT FOR PUBLICATION JUL 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICKY WEBB, No. 08-16159
Petitioner - Appellant, D.C. No. 3:04-CV-00116-JCM-
RAM
v.
MIKE BUDGE; ATTORNEY GENERAL MEMORANDUM *
OF THE STATE OF NEVADA,
Respondents - Appellees,
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted April 16, 2010
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges; and COLLINS, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
1
Appellant Ricky Webb (Webb) challenges the district court’s denial of his
habeas petition asserting ineffective assistance of counsel.
“Because [Webb] filed his habeas petition after April 24, 1996, his appeal is
governed by the Antiterrorism and Effective Death Penalty Act (AEDPA).” Byrd
v. Lewis, 566 F.3d 855, 859 (9th Cir. 2009) (citation omitted). “Under AEDPA,
[Webb’s] petition can be granted only if the state court determination resolving his
claims was contrary to, or involved an unreasonable application of, clearly
established Federal law or was based on an unreasonable determination of the
facts.” Id. (citation, alterations and internal quotation marks omitted).
We apply “the Supreme Court’s familiar two-part standard for analyzing
ineffective assistance claims set forth in Strickland v. Washington, 466 U.S. 668 . .
. (1984).” Pinholster v. Ayers, 590 F.3d 651, 663 (9th Cir. 2009) (en banc)
(citations omitted). Under Strickland, “the defendant must show that counsel’s
performance was deficient” and “that the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687.
The Nevada Supreme Court concluded that Webb’s counsel was not
ineffective because he “argue[d] the facts of the crime and requested concurrent
sentences” and the trial judge recognized that the “the three offenses were closely
related in time and space.” Webb’s counsel advocated that the judge impose
2
concurrent, rather than consecutive, sentences. The Nevada Supreme Court’s
denial of relief after considering these facts was not contrary to or an unreasonable
application of clearly established federal law. See Strickland, 466 U.S. at 700-01.
Because the Nevada Supreme Court did not address Webb’s other claims,
this court conducts an “independent review of the record to ascertain whether the
state court decision was objectively unreasonable.” Pinholster, 590 F.3d at 663
(citations and internal quotation marks omitted). Defense counsel’s strategy was to
show that Webb was taking responsibility for his actions. The Nevada Supreme
Court’s decision was not objectively unreasonable because Webb failed to
overcome the presumption that his counsel’s strategy was reasonable. See
Strickland, 466 U.S. at 689.
Finally, Webb did not show that he was prejudiced by his counsel’s failure
to inform the court that the gun was inoperable. See id. at 691-92.
AFFIRMED.
3