                           NOT FOR PUBLICATION                           FILED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

KYLE DION GISPANSKI,                            No.    17-56667

                Petitioner-Appellant,           D.C. No.
                                                5:13-cv-02284-MWF-MRW
 v.

P. D. BRAZELTON,                                MEMORANDUM*

                Respondent-Appellee.

                  Appeal from the United States District Court
                      for the Central District of California
                 Michael W. Fitzgerald, District Judge, Presiding

                          Submitted February 11, 2019**
                              Pasadena, California

Before: D.W. NELSON, CALLAHAN, and OWENS, Circuit Judges.

      Petitioner-Appellant Kyle Gispanski appeals the district court’s denial of his

federal habeas petition for ineffective assistance of counsel under 28 U.S.C.

§ 2254. We affirm the district court’s denial because the record does not leave a

“definite and firm conviction that a mistake has been committed.”


      *
             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).
      We review de novo a district court’s decision to deny a habeas petition under

28 U.S.C. § 2254(d). Powell v. Galaza, 328 F.3d 558, 562 (9th Cir. 2003). We

review the district court’s findings of fact, including credibility determinations, for

clear error. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000) (en banc); see

also Fed. R. Civ. P. 52(a). Review under the clearly erroneous standard is

significantly deferential, requiring a “definite and firm conviction that a mistake

has been committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting

United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)); see also

Fisher v. Tucson Unified Sch. Dist., 652 F.3d 1131, 1136 (9th Cir. 2011). An

appellate court “will not reverse a lower court’s finding of fact simply because [it]

‘would have decided the case differently.’” Easley, 532 U.S. at 242 (citation

omitted). Moreover, if “there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.” United States v.

Elliott, 322 F.3d 710, 715 (9th Cir. 2003) (citation omitted).

      Gispanski alleges that the district attorney extended a ten-year plea offer,

and that his retained defense attorney counseled him to reject it. Gispanski further

alleges that he rejected the plea because his defense attorney told him it was

excessive and that certain sentencing enhancements did not apply. Gispanski

argues that because his attorney was wrong about the applicability of the

sentencing enhancements, the first Strickland prong is met. See Strickland v.


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Washington, 466 U.S. 668, 688 (1984) (“[T]he defendant must show that counsel’s

representation fell below an objective standard of reasonableness.”). To satisfy the

second prong, Gispanski claims that he would have accepted the plea, but for his

attorney’s bad advice. The prosecutor, however, claims he never extended a ten-

year plea offer to Gispanski or his attorney. If there was no plea offer, then there

was no ineffective assistance.

       In January 2008, the prosecutor and Gispanski’s first defense attorney,

Public Defender Brian Cosgrove, discussed Gispanski entering an open plea to an

assault with a deadly weapon charge. An open plea would have left sentencing

discretion to the court, but both the prosecutor and the public defender believed the

court would impose a ten-year sentence. The prosecutor said he believed a ten-

year sentence was appropriate and would not oppose it. Gispanski ultimately

rejected the open plea offer because he did not want any prison time.

      In February 2008, the prosecutor amended the complaint to include an

attempted murder charge. In anticipation of trial, Gispanski fired his public

defender and hired David Haigh (lead defense counsel) and Thomas Chapin

(second chair). The prosecutor testified that after he filed the attempted murder

charge, he did not extend any more plea offers. In fact, under California law and

department policy, after he filed the attempted murder charge he did not have the

authority to extend an offer. The prosecutor also testified that while he would have


                                           3
entertained a settlement offer from the defense, the defense never made an offer.

      Sometime between February and April 2008, the defense investigator claims

he overhead the prosecutor extend a ten-year plea to Haigh. Moreover, the defense

investigator, Chapin, and Gispanski all testified that Haigh communicated this ten-

year plea offer to Gispanski and advised him to reject it.

      Haigh, however, testified that he did not remember the prosecutor extending

a plea offer, or personally discussing such an offer with Gispanski. Similarly,

Gispanski’s state appellate counsel testified that when she questioned Haigh and

Chapin about plea offers in July 2012, neither could remember the prosecutor

extending a ten-year plea offer.

      To support his version of events, Gispanski relies on two additional pieces of

evidence that he claims the district court did not adequately consider. First, he

points to a March 2008 preliminary hearing where the prosecutor and Haigh asked

the trial court for a continuance to allow further investigation and disposition

discussions. Second, at a pretrial hearing in May 2009, in response to the trial

asking whether the defense had made any offers to the prosecution, Haigh stated

that they had not discussed offers for over a year and a half and that his client had

rejected a different offer.

      After the hearing and reviewing all the evidence, the district court denied the

petition and made a factual finding that the prosecutor did not extend a ten-year


                                          4
plea offer. On appeal, Gispanski asks us to reweigh the evidence and second-guess

the district court’s factual and credibility determinations. This, however, would be

improper. The standard of review for factual finding is clear error—a deferential

standard. See Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985). This means

even if we were to have weighed the evidence differently on initial review, we

cannot reverse without a “definite and firm conviction that a mistake has been

committed.” Easley, 532 U.S. at 242. Such a definite and firm conviction does not

exist here.

      The district court weighed conflicting evidence. Some witnesses testified

that the prosecutor did not make a ten-year offer, while others testified that they

heard the prosecutor make such an offer or at least had heard about it. The district

court believed, as is its prerogative, the witnesses who testified that the prosecutor

did not make a ten-year offer. The district court noted the “appearance, tone, and

presentation” of the witnesses’ testimony when it made its credibility

determinations.

      The two pieces of evidence Gispanski claims the district court did not

properly consider do not help him. Each of those pieces of evidence lends itself to

reasonable alternative inferences. That the district court chose one reasonable

alternative inference over the other is not clear error. For example, it does not

mean the prosecutor extended a ten-year plea offer because the prosecutor and


                                           5
defense counsel asked for a continuance at the March 2008 preliminary hearing.

While that is one reasonable inference, another reasonable inference is that the

prosecutor was waiting for defense counsel to make an offer. The prosecutor

testified as such. The district court did not commit clear error because it chose the

first inference.

       The district court, similarly, did not commit clear error when it disregarded

Haigh’s statement at the pretrial hearing that he and the prosecutor had not

discussed offers for over a year and a half and that his client had rejected a

different offer. First, the pretrial hearing took place in May 2009, so a year and a

half earlier would have been before Gispanski retained Haigh as defense counsel in

February 2008. The statement is, therefore, inconsistent with Gispanski’s claim

that the prosecutor extended a ten-year offer to defense counsel sometime between

February and April 2008. In addition, defense counsel’s reference to “a different

offer” at the May 2009 hearing could have referred to the open plea offer made

when Cosgrove, the public defender, represented Gispanski. Again, the district

court chose one of several reasonable inferences. This is not clear error.

       Because we affirm the district court’s factual finding that there was no ten-

year plea offer, we need not address whether Gispanski would have accepted a ten-

year offer had the prosecutor made it. AFFIRMED.




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