                                                                               FILED
                            NOT FOR PUBLICATION                                 SEP 09 2014

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



                            FOR THE NINTH CIRCUIT


WILLIAM C. BLACKFORD,                             No. 13-35079

              Petitioner - Appellant,             D.C. No. 3:09-cv-00120-AC

  v.
                                                  MEMORANDUM*
OREGON BOARD OF PAROLE AND
POST-PRISON SUPERVISION,

              Respondent - Appellee.


                  Appeal from the United States District Court
                            for the District of Oregon
                Ancer L. Haggerty, Senior District Judge, Presiding

                       Argued and Submitted August 27, 2014
                                Seattle, Washington

Before: NOONAN, GRABER, and CHRISTEN, Circuit Judges.

       William C. Blackford appeals the district court’s denial of his petition for a

writ of habeas corpus. Our review is de novo, Babb v. Lozowsky, 719 F.3d 1019,

1025-26 (9th Cir.), cert. denied, 134 S. Ct. 526 (2013), and 28 U.S.C. § 2253

confers our jurisdiction.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. As an initial matter, there is no procedural bar to our consideration of

Blackford’s ineffectiveness claim in its entirety. At all stages of state

postconviction review, Blackford alleged that his trial counsel had been

constitutionally ineffective for failing to inform him of the “consequences” of his

guilty plea. Before the Oregon Court of Appeals in particular, Blackford’s brief

referred to several of the release conditions, explaining that trial counsel “did not

tell [Blackford] that he would have to give up hunting, give up alcohol, and have

no contact with minors.” Blackford’s ineffectiveness claim, therefore, was “fairly

presented to the state courts.” Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir.

2013) (internal quotation marks omitted).

      2. Blackford cannot show that the Oregon state court’s decision “was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1).

      At the time when the state postconviction trial court rendered its decision,

the Supreme Court had not clearly established that Strickland v. Washington, 466

U.S. 668 (1984), even applies where counsel fails to inform his client of collateral

consequences of conviction, such as sex offender registration and post-prison

conditions. See Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011) (“State-court


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decisions are measured against [the Supreme] Court’s precedents as of the time the

state court renders its decision.” (internal quotation marks omitted)). It was not

until Padilla v. Kentucky, 559 U.S. 356, 365-66 (2010), decided more than three

years after the state court’s decision in this case, that the Court held for the first

time that counsel could be constitutionally ineffective for failing to inform his

client of a non-criminal consequence of conviction—there, deportation. See

Chaidez v. United States, 133 S. Ct. 1103, 1111 (2013) (holding that the Court in

Padilla “announced a ‘new rule’”); id. at 1108 n.5 (noting that “sex offender

registration” is “commonly viewed as collateral”).

      Blackford’s claim fails for this reason alone. See Brewer v. Hall, 378 F.3d

952, 955 (9th Cir. 2004) (“If no Supreme Court precedent creates clearly

established federal law relating to the legal issue the habeas petitioner raised in

state court, the state court’s decision cannot be contrary to or an unreasonable

application of clearly established federal law.”).

      Even if Strickland were to apply, Blackford’s petition would fail under

Strickland’s prejudice prong. See Strickland, 466 U.S. at 692 (“[A]ny deficiencies

in counsel’s performance must be prejudicial to the defense in order to constitute

ineffective assistance under the Constitution.”). To establish prejudice, a petitioner

“must show that there is a reasonable probability that, but for counsel’s errors, he


                                            3
would have pleaded not guilty and would have insisted on going to trial.” Hill v.

Lockhart, 474 U.S. 52, 59 (1985). Here, Blackford’s overriding concern was

avoiding the risk of “doing a decade or more in prison.” Thus, the state court’s

finding that “the evidence shows that [Blackford] was making a difficult choice,

but one that was rational under the circumstances,” was not unreasonable, and

Blackford’s Strickland argument fails under the prejudice prong.

      AFFIRMED.




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