                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             JAN 10 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT

SAUL GARCIA CUEVAS,                              No. 12-55807

              Petitioner-Appellant,              D.C. No.
                                                 2:10-cv-09775-VAP-MLG
 v.

JAMES D. HARTLEY, Warden, Avenal                 MEMORANDUM*
State Prison,

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Virginia A. Phillips, Chief Judge, Presiding

                     Argued and Submitted December 12, 2016
                             San Francisco, California

Before: KOZINSKI and GRABER, Circuit Judges, and BREYER,** District
Judge.

      Petitioner Saul Garcia Cuevas appeals the denial of his petition for a writ of

habeas corpus. We affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
1.    After an extended crime spree, Cuevas faced up to two consecutive life

sentences plus at least another 37 years in prison. He pleaded guilty to reduced

charges, including 27 counts of robbery, that exposed him to a maximum sentence

of 37 years and eight months. When all was said and done, the state court

sentenced Cuevas to 35 years and eight months.

      As it turns out, eight of the robbery counts were duplicative under state law.

Cuevas argues that his lawyer was constitutionally ineffective under Strickland v.

Washington, 466 U.S. 668 (1984), for not advising him of those counts at the plea

stage or challenging them under California Penal Code section 654 at sentencing.1

To prevail on a Strickland claim, Cuevas must show (1) that counsel’s performance

was deficient and (2) that the deficient performance resulted in prejudice. See

Strickland, 466 U.S. at 687. We review whether the state court’s rejection of his

claim was unreasonable. 28 U.S.C. § 2254(d)(1).

2.    Counsel’s apparent failure to advise Cuevas about the duplicative counts at

the plea stage was deficient because it “impinged on [Cuevas]’s ability to enter an



      1
         “An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the
longest potential term of imprisonment, but in no case shall the act or omission be
punished under more than one provision. An acquittal or conviction and sentence
under any one bars a prosecution for the same act or omission under any other.”
Cal. Penal Code § 654(a).


                                          2
intelligent, knowing and voluntary plea of guilty,” Lambert v. Blodgett, 393 F.3d

943, 979 (9th Cir. 2004). But it was not prejudicial. Had Cuevas gone to trial, he

would have faced two consecutive life sentences plus at least another 37 years in

prison. We see no “reasonable probability that, but for counsel’s error[],” he would

have taken such a risk. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Accordingly, the

state court reasonably rejected Cuevas’s claim for ineffective assistance of counsel

at the plea stage.

3.     On to sentencing. As an initial matter, Daire v. Lattimore, 812 F.3d 766

(9th Cir. 2016) (en banc) (per curiam), held that Glover v. United States, 531 U.S.

198 (2001), clearly established that Strickland applies to non-capital sentencing

proceedings, so we may reach the merits. Just the same, Cuevas is out of luck.

       Under California law, counsel could have reasonably concluded that

challenging the duplicative counts at sentencing was at best a non-starter or, at

worst, tantamount to “attacking the validity” of the plea, People v. Cuevas, 187 P.3d

30, 35 (Cal. 2008). A defendant who agrees to a “specified prison term” and is

“sentenced to that term or a shorter one” thereby “abandons any claim that a

component of the sentence violates section 654’s prohibition of double punishment,

unless that claim is asserted at the time the agreement is recited on the record.” Cal.

Rule of Court 4.412(b). A “specified prison term” has been read to include an

agreed-upon sentence set “at or below” a maximum term, lest defendants be able “to

                                           3
unilaterally renege on the agreement that was negotiated in good faith with the

prosecutor and accepted by the trial court.” People v. Jones, 158 Cal. Rptr. 3d 786,

794-95 (Ct. App. 2013). Here, the record “clearly reflects” that Cuevas “agreed to a

maximum possible sentence of 37 years eight months,” Cuevas, 187 P.3d at 35.

      What is more, challenging duplicative counts in a plea agreement after it has

been accepted is “in substance a challenge to the plea’s validity” under California

law. People v. Shelton, 125 P.3d 290, 296 (Cal. 2006); accord Cuevas, 187 P.3d

at 35; People v. Panizzon, 913 P.2d 1061, 1067 (Cal. 1996). It was reasonable not

to raise a challenge that would have jeopardized the agreement. Accordingly, the

state court reasonably rejected Cuevas’s claim for ineffective assistance of counsel

at sentencing.

4.    On direct appeal, the California Supreme Court left no doubt that – under

California law – Cuevas “received what he negotiated and agreed to under the plea

agreement, and he must abide by the terms of the agreement.” Cuevas, 187 P.3d

at 37. And on review of his state habeas petition, it saw nothing that warranted

changing that state of affairs. In light of the above, we see nothing unreasonable

about that decision. See 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S.

86, 100 (2011) (according AEDPA deference to summary orders).

      AFFIRMED.



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