                                                                             FILED
                            NOT FOR PUBLICATION                               JUN 18 2010

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




                             FOR THE NINTH CIRCUIT



OSCAR ANTHONY BARRETTO,                           No. 08-55391

              Petitioner - Appellant,             D.C. No. 2:03-cv-04635-DSF-JTL

  v.
                                                  MEMORANDUM *
BEN CURRY, Warden,

              Respondent.



                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted June 11, 2010
                               Pasadena, California

Before: D.W. NELSON and GOULD, Circuit Judges, and GWIN, District Judge.**


       Petitioner Oscar Barretto appeals the district court’s dismissal of his petition

for a writ of habeas corpus. Because the California Supreme Court did not reach

the merits of Barretto’s petition, we review the district court’s denial of Barretto’s

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
petition de novo. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). We

affirm.

      The only argument before the court is Barretto’s contention that his counsel

provided ineffective assistance by failing to initiate plea negotiations with the

Government before the morning of the first day of trial. To prevail on this claim,

Barretto must show (1) that his counsel’s conduct fell below an objective standard

of reasonableness, and (2) that a reasonable probability exists that Barretto was

prejudiced by his counsel’s deficient performance. Strickland v. Washington, 466

U.S. 668, 688, 694 (1984). Without deciding whether Barretto’s counsel’s conduct

was objectively unreasonable, we hold that Barretto cannot show a reasonable

probability exists that he was prejudiced by his counsel’s conduct because Barretto

cannot show a reasonable probability that Judge Brodie would have approved a

plea bargain had Barretto’s counsel been able to negotiate one.

      In 2000, Barretto was convicted in California state court of being a felon in

possession of a firearm after he was spotted running through an apartment complex

with a handgun that police later discovered was loaded with hollow-point bullets.

Prior to this conviction, Barretto had already accumulated four “strikes” under

California’s Three Strikes Law. All four strikes stemmed from a 1984 burglary in

which Barretto and two others robbed three men at rifle point in their home.


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Between 1984 and 2000, Barretto had several additional run-ins with the law and

served jail time on four occasions, three times following convictions for being

under the influence of drugs and once following a petty theft conviction. Barretto

avoided a Three Strikes sentence of 25 years to life for the theft conviction only

because the sentencing judge dismissed one of Barretto’s existing strikes.

      In order to avoid a Three Strikes sentence in this case, Barretto again had to

argue successfully for dismissal of one or more of his strikes. The record suggests

no reasonable probability that Judge Brodie would have dismissed one of

Barretto’s strikes had Barretto attempted to plead guilty. When the Government

and Barretto’s counsel raised the possibility of a plea bargain on the morning of

trial, Judge Brodie did not permit the parties additional time to pursue a plea

agreement. At Barretto’s sentencing hearing, Judge Brodie declined to dismiss any

of Barretto’s strikes and instead sentenced Barretto to 25 years to life. Before

imposing that sentence, Judge Brodie discussed at length Barretto’s criminal

history and the fact that Barretto received leniency once before when he avoided a

Three Strikes sentence for his theft conviction. Judge Brodie referred to Barretto’s

1984 burglary as a “horrible, terrible crime” and noted that during the offense

Barretto “had a rifle, and he stuck it to someone’s head.” Judge Brodie also

emphasized that the handgun Barretto was convicted of possessing was “loaded


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with hollow-point bullets” and stated that this fact “trouble[d him] just mightily.”

Judge Brodie ultimately concluded that the circumstances of Barretto’s crime and

criminal history were so compelling that leniency did not “fall within the

parameters of . . . [his] discretion.” Accordingly, on the record before us, we

conclude that Barretto failed to show a reasonable probability that he was

prejudiced by his counsel’s conduct.




      AFFIRMED.




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