                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 15 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JERREL JONES,                                    No. 12-35343

              Petitioner - Appellant,            D.C. No. 2:11-cv-00947-RSL

  v.
                                                 MEMORANDUM*
STATE OF WASHINGTON,

              Respondent,

  and

STEPHEN SINCLAIR,

              Respondent - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                    Robert S. Lasnik, District Judge, Presiding

                     Argued and Submitted November 5, 2013
                              Seattle, Washington

Before: KOZINSKI, Chief Judge, and PAEZ and BERZON, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       The district court granted Jones “a certificate of appealability for Claim 1

(ineffective assistance of counsel) and Claim 9 (involuntary/unintelligent guilty

plea) insomuch as those claims are based on the possible discrepancy between

petitioner's factual admission to assaulting the 14-year-old T.P. and his conviction

for assaulting the 9 year-old A.P.” We conclude that Jones is not entitled to habeas

relief for the certified claims, or for the additional uncertified claims that he raised

in his briefing.

       1. The state court’s resolution of Jones’s claim that his guilty plea to Count

VII was unknowing, unintelligent, and involuntary was not contrary to, or an

unreasonable application of, clearly established federal law, and was not based on

an unreasonable determination of the facts in light of the evidence presented to that

court. 28 U.S.C. § 2254(d). Jones signed a document attesting that he had

received, and reviewed with his attorney, a copy of the second amended

information, which specified that A.P. was the victim of the crime charged as

Count VII. Jones then agreed to plead guilty to Count VII as charged in the second

amended information.

       Further, during Jones’s change of plea hearing, the trial court explained to

Jones the nature of the charges against him, and Jones confirmed that he

understood the charges and the elements that the State would have to prove to


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convict him of these crimes. Jones also stated that he was entering into his plea

freely and voluntarily. Although Jones’s written recitation of the factual basis of

his plea was altered to admit specifically to the assault of T.P. instead of A.P., in

light of the record as a whole, this circumstance does not compel the conclusion

that it was unreasonable for the state court to conclude that his plea was knowing,

intelligent, and voluntary.

      2. Jones also fails to demonstrate that he is entitled to habeas relief under

§ 2254(d) for his claim that his counsel was ineffective for failing to advise him

sufficiently regarding Count VII, and that he was prejudiced as a result. As

discussed above, Jones has not shown that it was unreasonable to conclude that his

attorney advised him sufficiently that this count charged assault of A.P. In

addition, if the plea agreement were changed so that Jones had admitted to Count

VIII for assault of T.P., instead of Count VII, the sentence that he faced would

have been the same, because his sentence terms were to run concurrently, and the

standard sentencing range for each of these charges is shorter than the range for the

first-degree kidnapping charge to which Jones also plead guilty.

      Further, although Jones now contends that he was prejudiced, because, but

for counsel’s purported deficient performance, he would not have pled guilty and

would have rejected the plea agreement, this assertion is belied by the record. In


                                           3
the state Supreme Court, Jones specifically stated that he did “not seek withdrawal

of his plea.” Instead, he sought partial or full dismissal of the charges.

      3. On his remaining claims, which were not included in the district court’s

certificate of appealability, Jones has not made a substantial showing of the denial

of a constitutional right, and thus we decline to expand the certificate of

appealability. We therefore do not address the uncertified claims.

      AFFIRMED.




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