                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 14 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RICARDO IRIVE,                                  No.    18-15925

                Petitioner-Appellant,           D.C. No.
                                                3:15-cv-00487-MMD-WGC
 v.

JO GENTRY, Warden; ATTORNEY                     MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,

                Respondents-Appellees.


RICARDO IRIVE,                                  No.    18-15927

                Petitioner-Appellant,           D.C. No.
                                                2:16-cv-00241-MMD-WGC
 v.

JO GENTRY, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,

                Respondents-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Miranda M. Du, District Judge, Presiding



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                              Submitted June 10, 2019**
                              San Francisco, California

Before: GOULD, IKUTA, and R. NELSON, Circuit Judges.

      Nevada state prisoner Ricardo Irive appeals the district court’s denial of his

28 U.S.C. § 2254 habeas corpus petitions challenging his sentence in two discrete

robbery trials. Irive argues he received ineffective assistance when his trial

counsel advised him to delay accepting a global plea offer until she could

investigate the strength of the state’s case. He argues her mistaken representation

that the offer would remain available until trial resulted in his facing trial and

sentencing in both cases and receiving a higher sentence than offered in the initial

global plea deal. We affirm the district court’s denial of Irive’s petitions.

      We review the state court’s adjudication of Irive’s claims under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and can grant

federal habeas relief only if Irive demonstrates the Nevada Supreme Court’s

decision was “contrary to, or involved an unreasonable application of, clearly

established federal law,” or “was based on an unreasonable determination of the

facts.” 28 U.S.C § 2254(d). Under AEDPA, the question before us is “not

whether counsel’s actions were reasonable,” but “whether there is any reasonable

argument that counsel satisfied [the] deferential standard” set forth in Strickland v.


      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                           2
Washington, 466 U.S. 668 (1984). Harrington v. Richter, 562 U.S. 86, 100 (2011).

      The Nevada Supreme Court’s conclusion that Irive’s trial counsel did not

render deficient performance under Strickland was neither “contrary to” nor “an

unreasonable application of . . . clearly established federal law.” 28 U.S.C. §

2254(d)(1). Counsel’s advice to Irive—to delay acceptance of the plea deal

pending further investigation—was legally sound. Irive contends that it was

unreasonable for counsel to fail to determine when the plea deal would expire, but

counsel’s decision not to inquire on this point—in an effort to avoid the

prosecution limiting the offer—was a reasonable strategic decision. Under the

circumstances, it was reasonable for the Nevada Supreme Court to conclude that

trial counsel’s conduct in plea bargaining met the Strickland standard. See Lafler

v. Cooper, 566 U. S. 156, 163, 173-74 (2012).

      Additionally, Irive has not shown that trial counsel’s allegedly deficient

performance prejudiced his defense. Because Irive claims he was harmed by

rejecting the plea deal, he must demonstrate that but for trial counsel’s mistaken

representation there is a “reasonable probability” that the plea offer “would have

been presented to the court (i.e., that the defendant would have accepted the plea

and the prosecution would not have withdrawn it in light of intervening

circumstances), that the court would have accepted its terms,” and that his sentence

under the plea agreement “would have been less severe” than the sentence


                                          3
imposed. Lafler, 566 U.S. at 164.

      Irive has not offered any evidence that his decision to defer acceptance of

the plea offer pending further investigation was contingent on the ultimately

mistaken representation that the offer would remain open until trial. Even if he

had, Irive failed to demonstrate to the Nevada courts that his codefendant would

also have accepted the contingent offer. He likewise failed to provide any

evidence that the ambiguous offer would have been honored by the prosecution—

which, given the negotiating landscape, is questionable. Consequently, Irive has

not met the prejudice requirements of Strickland and the Nevada Supreme Court’s

finding that prejudice was not established is not unreasonable.

AFFIRMED.




                                         4
