Willie Hartwell v. Dwight Neven

MEMORANDUM * The Nevada state court’s determination that Willie Lamar Hartwell was not denied his Sixth Amendment right to the effective assistance of counsel was not an unreasonable application of clearly established Supreme Court precedent because Hartwell cannot show he suffered prejudice due to any deficiency of counsel. 28 U.S.C. § 2254(d); see Roe v. Flores-Ortega, 528 U.S. 470, 484, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Even assuming that Hart-well’s indications triggered his counsel’s duty to consult, the Nevada state court could reasonably conclude that Hartwell was not deprived of an appeal, given that the Nevada Supreme Court directed the state trial court to consider all of Hart-well’s “direct appeal” claims even if it determined that counsel was not ineffective; Hartwell argued his claims to the state trial court with the assistance of counsel; the state trial court rejected those claims on the merits; and the Nevada Supreme Court rejected the only claim Hartwell elected to raise on appeal. See id. at 483, 120 S.Ct. 1029. We also reject Hartwell’s argument that the Nevada sentencing court violated his federal due process rights by enhancing his sentence under Nevada’s habitual criminal statute, and therefore need not reach the question whether this claim was exhausted in state court. See 28 U.S.C. § 2254(b)(2). The Nevada Supreme Court could reasonably determine, pursuant to state law, that Hartwell effectively stipulated to at least five prior felony convictions. See Hodges v. State, 119 Nev. 479, 78 P.3d 67, 70 (2003). Moreover, even if the Nevada Supreme Court erred, an error of state law such as this one, which does not rise to the level of a federal due process violation, cannot serve as the basis for federal habeas relief. See Swarthout v. Cooke, — U.S.-, 131 S.Ct. 859, 861, 178 L.Ed.2d 732 (2011); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). AFFIRMED. Footnotes [*] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.