KERSHAW v. EVANS, 411 Fed.Appx. 996 (9th Cir. 2011)

Michael Upton KERSHAW, Petitioner-Appellant, v. Mike EVANS, Warden, Respondent-Appellee.

No. 09-17384.United States Court of Appeals, Ninth Circuit.Submitted January 10, 2011.[*]
Filed January 25, 2011.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

[*] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

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Michael Upton Kershaw, Jamestown, CA, pro se.

Paul O’Connor, Deputy Attorney General, AGCA-Office of the California Attorney General, Sacramento, CA, for Respondent Appellee.

Appeal from the United States District Court for the Eastern District of California, Mary M. Schroeder, Circuit Judge, Presiding. D.C. No. 2:06-cv-01430-MMS.

Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

MEMORANDUM[**]

[**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

California state prisoner Michael Upton Kershaw appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

Kershaw contends that his counsel was ineffective for failing to accurately advise him regarding his potential sentence if he rejected the state’s plea offer and proceeded to trial.

The state court, after conducting an evidentiary hearing, found that Kershaw failed to show either deficient performance or prejudice regarding this claim. This decision was not contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668, 690-93, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See 28 U.S.C. § 2254(d)(1).

The state court also found that Kershaw was aware of his potential sentencing exposure under California Penal Code § 667.71. Kershaw failed to present “clear and convincing evidence” overcoming the presumption of correctness of this

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finding. Accordingly, the state court’s decision was not based on an “unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” See 28 U.S.C. § 2254(d)(2), (e)(1).

AFFIRMED.

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