Eugene Linder v. Bill Donat

MEMORANDUM ** Eugene Anthony Linder, a Nevada state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus *826 petition challenging his murder conviction and sentence of life with possibility of parole after ten years. Linder contends his guilty plea, entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), was not knowing, intelligent, and voluntary, and that his counsel rendered ineffective assistance by misadvising him as to the potential sentence as a result of the Alford plea. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. 1 Linder’s statements at the plea colloquy and in the guilty plea agreement, coupled with the charges in the information, provided sufficient “strong factual basis,” see Alford, 400 U.S. at 38, 91 S.Ct. 160, from which a reasonable jury could find that Linder strangled the victim and that he did so with malice aforethought. See United States v. Neel, 547 F.2d 95, 96 (9th Cir.1976) (per curiam) (“The court need not be convinced beyond a reasonable doubt that an accused is guilty. It need only be convinced that there is sufficient evidence to justify the reaching of such a conclusion.”). The Nevada Supreme Court’s conclusion that this evidence was sufficient to support a charge of second degree murder was not contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1). Moreover, Linder’s statements in the plea agreement and in response to the trial court’s questions at the plea colloquy indicated his “clearly expressed desire” to enter the plea, see Alford, 400 U.S. at 38, 91 S.Ct. 160, especially in light of the mandatory life sentence without possibility of parole or with possibility of parole after twenty years that he might have received if he was convicted of first degree murder. See id. at 31, 91 S.Ct. 160 (an Alford plea must represent “a voluntary and intelligent choice among the alternative courses of action open to the defendant”). Similarly, considering the options available to Linder at the time of the plea colloquy, the Nevada Supreme Court’s conclusion that he suffered no prejudice from his counsel’s alleged misadvisement as to the potential sentence was not unreasonable. First, there was no prejudice because the plea agreement clearly informed Linder that he could be sentenced to life imprisonment with a possibility for parole after ten years. See Womack v. Del Papa, 497 F.3d 998, 1003 (9th Cir. 2007). Second, in light of the State’s “formidable” case against him, see Premo v. Moore, — U.S.-, 131 S.Ct. 733, 744, 178 L.Ed.2d 649 (2011), Linder failed to show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Linder’s motion to expand the certificate of appealability is denied. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Linder’s request for judicial notice is granted. AFFIRMED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. [1] Because the parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our disposition.