Brothers v. McDaniel

MEMORANDUM ^**

Nevada state prisoner Brothers appeals from the District Court’s refusal to grant him an evidentiary hearing when denying his habeas petition challenging his guilty plea conviction for first degree murder with use of a deadly weapon. We review a district court’s denial of a habeas petition de novo.¹

Brothers concedes that his state habeas petition was procedurally defaulted. He fails to “show that some objective factor external to [his] defense” caused his procedural default.² There is no right to counsel on state collateral review, so Brothers cannot use an ineffective assistance of counsel claim to overcome a procedural default.³ Brothers requests that we extend Loveland v. Hatcher⁴ in order to grant him an evidentiary hearing on the issue of his procedural default, but Love-land is not Supreme Court authority as 28 U.S.C. § 2254 requires, and it is not analogous. In Loveland the petitioner thought his attorney had appealed, but in this case, the petitioner waived his right to appeal. Brothers gives no reason why he should be given an evidentiary hearing, so we will not extend Loveland to the degree he requests.

We will not grant a Certificate of Appealability on Brothers’s uncertified claims because no “jurists of reason would find it debatable” that Brothers states any “valid claim[s] of the denial of a constitutional right[s].”⁵

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

1 . Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir.2003).

2 . Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

3 . Smith v. Idaho, 383 F.3d 934, 939 amended and superceded by 392 F.3d 350, 356-57 (9th Cir.2004).

4 . Loveland v. Hatcher, 231 F.3d 640 (9th Cir.2000).

5 . Petrocelli v. Angelone, 248 F.3d 877, 883-84 (9th Cir.2001) (citing Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).