                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 08 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KAM ALAN MILLS,                                  No. 14-35568

              Petitioner - Appellant,            D.C. No. 2:13-cv-05140-JTR

  v.
                                                 MEMORANDUM*
BERNARD WARNER,

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Lonny R. Suko, District Judge, Presiding

                          Submitted December 10, 2015**
                               Seattle, Washington

Before: McKEOWN and TALLMAN, Circuit Judges and LEFKOW,*** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Joan Humphrey Lefkow, Senior District Judge for the
U.S. District Court for the Northern District of Illinois, sitting by designation.
      Kam Alan Mills (“Mills”) appeals the district court’s denial of the

ineffective assistance of counsel claim in his 28 U.S.C. § 2254 petition as

procedurally defaulted. We granted Mills a limited certificate of appealability on

“whether the district court properly ruled that [his] ineffective assistance of trial

counsel claim is procedurally defaulted.” We have jurisdiction pursuant to

28 U.S.C. §§ 1291 and 2253. We review de novo the district court’s denial of a

habeas petition, Lopez v. Schriro, 491 F.3d 1029, 1036 (9th Cir. 2007), and we

affirm.

      A federal court generally cannot grant a habeas petition that has been

procedurally defaulted in state court. Coleman v. Thompson, 501 U.S. 722, 729-30

(1991). However, “[i]nadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner’s procedural default of a claim of

ineffective assistance at trial.” Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). To

establish cause under Martinez, the petitioner must show that “(1) the underlying

ineffective assistance of trial counsel claim is ‘substantial’; (2) the petitioner was

not represented or had ineffective counsel during the [post-conviction relief

(‘PCR’)] proceeding; (3) the state PCR proceeding was the initial review

proceeding; and (4) state law required (or forced as a practical matter) the

petitioner to bring the claim in the initial review collateral proceeding.” Dickens v.


                                            2
Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (en banc) (citing Trevino v. Thaler, 133

S. Ct. 1911, 1918 (2013)).

      Only the first element is at issue. After reviewing the briefs and record, we

conclude that because Mills does not have an ineffective assistance of trial counsel

claim under Lafler v. Cooper, 132 S. Ct. 1376, 1384-85 (2012) (holding there is no

ineffective assistance of trial counsel claim when a rejected plea, if accepted,

would not result in a less severe judgment or sentence), he cannot show that

“reasonable jurists could debate” whether his habeas petition should have been

granted. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Accordingly, Mills does

not have a “substantial” underlying ineffective assistance of trial counsel claim.

Martinez, 132 S. Ct. at 1318.

      AFFIRMED.




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