                                                                              FILED
                            NOT FOR PUBLICATION                                SEP 10 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KENNETH PATRICK HIBBLER,                          No. 11-16683

              Petitioner - Appellant,             D.C. No. 3:07-cv-00467-RCJ-VPC

  v.
                                                  MEMORANDUM *
JAMES BENEDETTI and NEVADA
ATTORNEY GENERAL,

              Respondents - Appellees.



                   Appeal from the United States District Court
                             for the District of Nevada
                 Robert Clive Jones, Chief District Judge, Presiding

                        Argued and Submitted June 12, 2012
                             San Francisco, California

Before:       D.W. NELSON, RAWLINSON, and IKUTA, Circuit Judges.

       The Nevada Supreme Court did not make an unreasonable determination of

the facts in light of the evidence before the state court, or unreasonably apply

clearly established Supreme Court precedent, when it rejected Kenneth Patrick

Hibbler’s claims that he was denied his Sixth Amendment right to effective


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
assistance of counsel due to counsel’s: (1) misadvising him about the availability

of an insanity or diminished capacity defense, and (2) failing to present Hibbler’s

request to withdraw his guilty plea.1 See 28 U.S.C. § 2254(d).

      First, the state court reasonably determined that Hibbler’s allegation that

counsel told him that no insanity defense existed in Nevada was incredible in light

of the record, which conclusively showed that counsel was actively pursuing a

potential insanity defense prior to the plea. This finding was not rendered

unreasonable by the state court’s failure to hold an evidentiary hearing because the

state court reasonably concluded that Hibbler’s allegations were belied by the

record. See United States v. Hibbler, ___ F.3d ____ (9th Cir. 2012); Perez v.

Rosario, 459 F.3d 943, 950 (9th Cir. 2006). Moreover, the state court did not

unreasonably apply Supreme Court precedent in concluding that any incorrect

advice by counsel would not have prejudiced Hibbler because it would not have

been rational for Hibbler to insist on going to trial on much more serious charges

based on a weak defense. See Padilla v. Kentucky, 130 S. Ct. 1473, 1485–86

(2010).




      1
        We address Hibbler’s ineffective assistance claim based on counsel’s
allowing Hibbler to plead guilty at a time when he was allegedly incompetent in a
separate opinion filed concurrently with this memorandum disposition.

                                          2
      Second, the state court’s finding that Hibbler assented to Ungaro’s decision

not to move to withdraw the plea was reasonable given that (1) Ungaro was

appointed, in part, to discuss withdrawing the plea with Hibbler; and (2) Hibbler

confirmed that he wished to retain Ungaro as counsel immediately after Ungaro

stated that she saw no basis for withdrawing the plea. The state court’s alternative

conclusion, that any deficiency resulting from Ungaro’s failure to move to

withdraw the plea was not prejudicial, was not an unreasonable application of

Strickland v. Washington, 466 U.S. 668 (1984). The state court reasonably

concluded that there was no reasonable probability that a motion to withdraw the

plea would have been successful since Hibbler adduced no credible evidence that

the plea was not knowing and voluntary. See Molina v. State, 87 P.3d 533, 537–38

(Nev. 2004) (pre-sentence motion to withdraw plea properly denied because

totality of circumstances showed that defendant voluntarily, knowingly, and

intelligently entered the plea agreement).

      The district court properly denied Hibbler’s request for an evidentiary

hearing. An evidentiary hearing is unnecessary when the state court’s decision

withstands scrutiny under § 2254(d). See Cullen v. Pinholster, 131 S. Ct. 1388,

1400 & n.7 (2011).

      AFFIRMED.


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