                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         JUN 13 2019
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

JAIME IGNACIO ESTRADA,                           No.    18-15267

                Petitioner-Appellant,            D.C. No.
                                                 1:14-cv-00679-DAD-EPG
 v.

MARTIN BITER, Warden,                            MEMORANDUM*

                Respondent-Appellee.

                    Appeal from the United States District Court
                       for the Eastern District of California
                     Dale A. Drozd, District Judge, Presiding

                              Submitted June 10, 2019**
                              San Francisco, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and RAYES,*** District
Judge.

      Petitioner Jaime Estrada appeals the district court’s denial of his petition for

a writ of habeas corpus, arguing that the district court erred in finding that


      *
             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 Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
Petitioner failed to establish an off-the-record nineteen-year plea offer was made to

trial counsel and erred in denying his ineffective assistance of counsel (IAC) claim.

We have jurisdiction pursuant to 18 U.S.C. § 1291, and we affirm.

1.    Before we address the merits, the State challenges whether the district court

properly concluded that deference under 28 U.S.C. § 2254(d) did not apply. As

relevant here, the Antiterrorism and Effective Death Penalty Act of 1996 bars

religitation of any claim adjudicated on the merits by the state court unless a

petitioner can show that the state court adjudication “resulted in a decision that was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d). While the state

court purported to adjudicate Petitioner’s IAC claim that trial counsel failed to

communicate an off-the-record nineteen-year plea offer, it unreasonably applied

the facts from a separate IAC claim that trial counsel failed to advise Petitioner to

accept an eight-year plea offer in its analysis. The state court order makes clear

that the court erroneously substituted the relevant facts and made no determination

as to the nineteen-year plea offer claim. Thus, the district court appropriately

adjudicated the claim de novo.

2.    While we agree that “counsel has the duty to communicate formal offers

from the prosecution to accept a plea on terms and conditions that may be

favorable to the accused,” Missouri v. Frye, 566 U.S. 134, 145 (2012), the district


                                          2                                       18-15267
court did not clearly err when it found that Petitioner failed to show that an off-the-

record nineteen-year plea offer was communicated to his counsel, but not to him.

“A finding of fact is clearly erroneous only where it is ‘(1) illogical, (2)

implausible, or (3) without support in inferences that may be drawn from the facts

in the record.’” United States v. Christensen, 828 F.3d 763, 779 (9th Cir. 2015)

(quoting United States v. Pineda-Doval, 692 F.3d 942, 944 (9th Cir. 2012)).

      Instead, much of the evidence supports the theory that the plea offer was

made at the August 17, 1995 evidentiary hearing with Petitioner present, and that

the offer was rejected. First, the August 16, 1995 memorandum, where district

attorney Donald Stahl tentatively approved a plea offer, still noted outstanding

questions as to the effect of Petitioner’s Merced convictions. This suggests that

without resolution of these questions, the district attorney was not prepared to offer

a plea. Second, the turnaround document prepared concurrently with the hearing

stipulated a nineteen-year plea offer calculation. Third, the court’s minute order

reflects that the parties discussed a plea offer, though they debate its precise terms.

Finally, deputy district attorney Charles McKenna’s August 17, 1995 green

memorandum confirmed that the ambiguity of the Merced convictions’ effect was

not resolved until the hearing.

      Because the district court did not clearly err in finding that the nineteen-year

plea offer was made while Petitioner was present, we hold, on de novo review, that


                                           3                                    18-15267
Petitioner’s IAC claim fails because he cannot show his counsel rendered deficient

performance. Strickland v. Washington, 466 U.S. 668, 687 (1984) (to establish an

IAC claim, the defendant must show (1) deficient performance by counsel and (2)

prejudice to the defense).

      AFFIRMED.




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