                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL RAY RAMBORGER,                          No.    16-16349

                Petitioner-Appellant,           D.C. No. 2:15-cv-00120-KJN

 v.
                                                MEMORANDUM*
SCOTT FRAUENHEIM, Warden,

                Respondent-Appellee.

                  Appeal from the United States District Court
                      for the Eastern District of California
                 Kendall J. Newman, Magistrate Judge, Presiding

                           Submitted January 17, 2019**
                             San Francisco, California

Before: WALLACE and FRIEDLAND, Circuit Judges, and ADELMAN,***
District Judge.

      Michael Ramborger appeals from the district court’s denial of his 28 U.S.C.

§ 2254 habeas corpus petition challenging his conviction and sentence for various


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
drug-related crimes and possession of a handgun and ammunition by a felon. We

hold that the state court reasonably rejected Ramborger’s argument that his counsel

rendered ineffective assistance in connection with plea negotiations, and we

therefore affirm the district court’s denial of Ramborger’s petition.

      We review federal habeas corpus petitions under the standard of review set

forth in the Antiterrorism and Effective Death Penalty Act. 28 U.S.C. § 2254.

Section 2254 “bars relitigation of any claim ‘adjudicated on the merits’ in state

court,” subject to two narrow exceptions. Harrington v. Richter, 562 U.S. 86, 98

(2011). The exceptions apply if a petitioner can show that the state court’s

previous adjudication of the claim either (1) was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or (2) was “based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” Id. at 97-98 (quoting 28 U.S.C. § 2254(d)). A federal court may not

hear a habeas corpus petition unless the petitioner exhausted all available state

judicial remedies. Rose v. Lundy, 455 U.S. 509, 518 (1982).

      Ineffective assistance of counsel claims are governed by the standard set

forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires showing

that counsel’s deficient performance fell below an objective standard of

reasonableness, id. at 688, and that but for trial counsel’s unprofessional errors, a


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more favorable outcome would have been achieved, id. at 694-95. In a plea

bargain situation, “a defendant must show the outcome of the plea process would

have been different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163

(2012). Where a plea offer has lapsed or been rejected because of counsel’s

deficient performance, a petitioner must demonstrate a reasonable probability that

he would otherwise have accepted the earlier plea offer and that the plea would

have been entered without the prosecution canceling it or the trial court refusing to

accept it. Missouri v. Frye, 566 U.S. 134, 147 (2012).

      The State contends that the ineffective assistance of counsel claim

Ramborger raises in this appeal is unexhausted. We need not decide whether

Ramborger exhausted this precise claim, however, because it fails on the merits

regardless. See 28 U.S.C. § 2254(b)(2). At best, Ramborger’s claim is based on

pure speculation that the prosecutor would have welcomed Ramborger’s

acceptance of the initial offer if Ramborger had communicated an acceptance

earlier. Ramborger presents no evidence in the record that would demonstrate a

reasonable probability that this would have occurred. And, at worst, Ramborger’s

claim is belied by the evidence that—unbeknownst to defense counsel—the plea

deal had already been withdrawn by the prosecutor at the time that Ramborger

blames defense counsel for not convincing him to accept the deal. As the district

court correctly held, prosecutors have the unilateral ability to withdraw a plea offer


                                          3
before a petitioner accepts, and Ramborger’s counsel “cannot be faulted for failing

to inform petitioner of an expiration date of which he was unaware.” Ramborger

has therefore failed to show that either prong of the Strickland test was met: he

neither demonstrated that counsel’s deficient performance was objectively

unreasonable, nor established that the outcome would actually have been different

if counsel had not made the alleged errors. Strickland, 466 U.S. at 688, 694.

      AFFIRMED.




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