Ricardo Irive v. Jo Gentry ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO IRIVE, No. 18-15925
Petitioner-Appellant, D.C. No.
3:15-cv-00487-MMD-WGC
v.
JO GENTRY, Warden; ATTORNEY MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
RICARDO IRIVE, No. 18-15927
Petitioner-Appellant, D.C. No.
2:16-cv-00241-MMD-WGC
v.
JO GENTRY, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted June 10, 2019**
San Francisco, California
Before: GOULD, IKUTA, and R. NELSON, Circuit Judges.
Nevada state prisoner Ricardo Irive appeals the district court’s denial of his
28 U.S.C. § 2254 habeas corpus petitions challenging his sentence in two discrete
robbery trials. Irive argues he received ineffective assistance when his trial
counsel advised him to delay accepting a global plea offer until she could
investigate the strength of the state’s case. He argues her mistaken representation
that the offer would remain available until trial resulted in his facing trial and
sentencing in both cases and receiving a higher sentence than offered in the initial
global plea deal. We affirm the district court’s denial of Irive’s petitions.
We review the state court’s adjudication of Irive’s claims under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and can grant
federal habeas relief only if Irive demonstrates the Nevada Supreme Court’s
decision was “contrary to, or involved an unreasonable application of, clearly
established federal law,” or “was based on an unreasonable determination of the
facts.” 28 U.S.C § 2254(d). Under AEDPA, the question before us is “not
whether counsel’s actions were reasonable,” but “whether there is any reasonable
argument that counsel satisfied [the] deferential standard” set forth in Strickland v.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2
Washington, 466 U.S. 668 (1984). Harrington v. Richter, 562 U.S. 86, 100 (2011).
The Nevada Supreme Court’s conclusion that Irive’s trial counsel did not
render deficient performance under Strickland was neither “contrary to” nor “an
unreasonable application of . . . clearly established federal law.” 28 U.S.C. §
2254(d)(1). Counsel’s advice to Irive—to delay acceptance of the plea deal
pending further investigation—was legally sound. Irive contends that it was
unreasonable for counsel to fail to determine when the plea deal would expire, but
counsel’s decision not to inquire on this point—in an effort to avoid the
prosecution limiting the offer—was a reasonable strategic decision. Under the
circumstances, it was reasonable for the Nevada Supreme Court to conclude that
trial counsel’s conduct in plea bargaining met the Strickland standard. See Lafler
v. Cooper, 566 U.S. 156, 163, 173-74 (2012).
Additionally, Irive has not shown that trial counsel’s allegedly deficient
performance prejudiced his defense. Because Irive claims he was harmed by
rejecting the plea deal, he must demonstrate that but for trial counsel’s mistaken
representation there is a “reasonable probability” that the plea offer “would have
been presented to the court (i.e., that the defendant would have accepted the plea
and the prosecution would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms,” and that his sentence
under the plea agreement “would have been less severe” than the sentence
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imposed. Lafler, 566 U.S. at 164.
Irive has not offered any evidence that his decision to defer acceptance of
the plea offer pending further investigation was contingent on the ultimately
mistaken representation that the offer would remain open until trial. Even if he
had, Irive failed to demonstrate to the Nevada courts that his codefendant would
also have accepted the contingent offer. He likewise failed to provide any
evidence that the ambiguous offer would have been honored by the prosecution—
which, given the negotiating landscape, is questionable. Consequently, Irive has
not met the prejudice requirements of Strickland and the Nevada Supreme Court’s
finding that prejudice was not established is not unreasonable.
AFFIRMED.
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