                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 20 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PABLO CEBALLOS,                                  No. 11-16104

              Petitioner - Appellant,            D.C. No. 2:07-cv-01023-GMN-
                                                 PAL
  v.

BRIAN WILLIAMS; NEVADA                           MEMORANDUM *
ATTORNEY GENERAL,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                    Gloria M. Navarro, District Judge, Presiding

                             Submitted June 14, 2013 **
                              San Francisco, California

Before: SCHROEDER, RIPPLE ***, and CALLAHAN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
      Petitioner-Appellant Pablo Ceballos appeals the dismissal of his petition for

a writ of habeas corpus. The district court had jurisdiction under 28 U.S.C. § 2254,

we have jurisdiction under 28 U.S.C. § 2253, and we affirm.1

      Assuming without deciding that Martinez v. Ryan, 132 S. Ct. 1309 (2012),

applies to state post-conviction proceedings in Nevada, see Trevino v. Thaler, 133

S. Ct. 1911 (2013), Ceballos fails to establish that his post-conviction counsel

rendered constitutionally ineffective assistance when he did not press, in the initial

post-conviction proceedings, Ceballos’s claim that his trial lawyer was ineffective

when she failed to resolve his case according to an alleged misdemeanor plea deal

from the State. Ceballos’s post-conviction counsel, after reviewing the record and

seeking his client’s input, reasonably determined that the trial ineffective-

assistance-of-counsel claim was meritless; apart from Ceballos’s assertions, there

was no evidence that such a deal existed or that Ceballos had accepted it.

Ceballos’s counsel also reasonably determined that Ceballos faced a possible

perjury charge if an evidentiary hearing was held. See Wiggins v. Smith, 539 U.S.

510, 521 (2003) (“‘[S]trategic choices made after thorough investigation of law

and facts relevant to plausible options are virtually unchallengeable.’” (quoting


      1
        Ceballos’s motion for judicial notice (ECF No. 17) is granted.
Respondents-Appellees Brian Williams, et al.’s motion to strike (ECF No. 21) is
denied.

                                           2
Strickland v. Washington, 466 U.S. 668, 690 (1984)); Sexton v. Cozner, 679 F.3d

1150, 1157 (9th Cir. 2012) (“Counsel is not necessarily ineffective for failing to

raise even a nonfrivolous claim, so clearly we cannot hold counsel ineffective for

failing to raise a claim that is meritless.” (citations omitted)). Ceballos thus fails to

establish cause and prejudice to excuse his procedural default under Martinez.

      AFFIRMED.




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