Davis v. Nevada Attorney General

FILED
NOT FOR PUBLICATION MAR 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JERRY LYNN DAVIS, No. 10-15450
Petitioner - Appellant, D.C. No. 3:09-cv-00222-ECR-
RAM
v.
NEVADA ATTORNEY GENERAL; E.K. MEMORANDUM *
MCDANIEL, Warden,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Argued and Submitted February 14, 2011
San Francisco, California
Before: O’SCANNLAIN and TROTT, Circuit Judges, and CAMPBELL, Senior
District Judge.**
Jerry Davis appeals the district court’s denial of his petition for a writ of
habeas corpus. We review de novo the district court’s denial of habeas relief, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Tena Campbell, Senior District Judge for the U.S.
District Court for Utah, sitting by designation.
“[w]e may affirm the district court’s decision on any ground supported by the
record, even if it differs from the district court’s rationale.” Lambert v. Blodgett,
393 F.3d 943, 965 (9th Cir. 2004). Mr. Davis’s claim, that he received ineffective
assistance due to his trial counsel’s failure to object to the trial court’s imposition
of consecutive sentences, was fairly presented to the Nevada Supreme Court; the
claim is thus properly exhausted. Castillo v. McFadden, 399 F.3d 993, 998-99 (9th
Cir. 2005).
Having expanded the Certificate of Appealability and received supplemental
briefing regarding the merits of Mr. Davis’s claim from the parties, the court finds
it to be without merit. The last reasoned opinion of the state court determined that
the performance of Mr. Davis’s counsel was not deficient because Nevada law
does not bind a trial court to a plea agreement, and Mr. Davis acknowledged his
understanding that the sentence imposed would be at the sole discretion of the trial
court. This decision was not contrary to, nor did it involve an unreasonable
application of, clearly established federal law: in this case, the standard for
effective assistance of counsel set forth by Strickland v. Washington, 466 U.S. 668,
687-88 (1984).
AFFIRMED.