                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 19 2011

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




                            FOR THE NINTH CIRCUIT



ERNESTO RIVAS LOPEZ,                             No. 10-55058

              Petitioner - Appellant,            D.C. No. 3:08-cv-00457-LAB-
                                                 AJB
  v.

MACK JENKINS, Chief Probation                    MEMORANDUM *
Officer, San Diego County Probation
Department; EDMUND G. BROWN, Jr.,
Attorney General,

              Respondents - Appellees.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                       Argued and Submitted July 12, 2011
                              Pasadena, California

Before: FERNANDEZ, RYMER, and TALLMAN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Ernesto Lopez, a citizen of Mexico residing in the U.S. on a grant of asylum,

appeals the district court’s denial of his petition for writ of habeas corpus under 28

U.S.C. § 2254.1 We affirm.

      Lopez first argues his trial counsel was constitutionally ineffective in failing

to adequately investigate defenses to three state-law counts of possession for sale

of a controlled substance. Specifically, Lopez complains that his counsel should

have presented trial testimony from four of Lopez’s friends, all of whom stated in

declarations that they had no knowledge of Lopez ever selling drugs. Lopez was

ultimately convicted on all three counts.

      The California Court of Appeal2 did not unreasonably apply Supreme Court

precedent, see § 2254(d)(1), when it concluded that the testimony of Lopez’s

friends would not have been “‘reasonably likely’” to change the outcome at trial.

See Harrington v. Richter, 131 S. Ct. 770, 792 (2011) (quoting Strickland v.

Washington, 466 U.S. 668, 696 (1968)). Nor did the state appellate court make an




      1
         The parties are familiar with the facts. We repeat them only as necessary
to explain our disposition.
      2
         We review the “last reasoned decision” by a state court. Robinson v.
Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (internal quotation omitted). The last
reasoned decision here is the California Court of Appeal’s order denying Lopez’s
state habeas petition.

                                            2
“unreasonable determination of the facts” when it rejected this claim. See §

2254(d)(2).

      Lopez also argues his trial counsel was constitutionally ineffective in failing

to advise him about the possibility of “pleading up” from the possession-for-sale

counts—which are aggravated felonies under federal immigration law, see, e.g.,

United States v. Moreno-Cisneros, 319 F.3d 456, 457 (9th Cir. 2003) (citing 8

U.S.C. § 1101(a)(43)(B))—to similar but nonaggravated felonies. According to

Lopez, pleading up would have resulted in a longer prison sentence but spared him

the adverse immigration consequences of an aggravated-felony conviction—i.e.,

mandatory loss of asylum and removal from the country. See 8 U.S.C. §

1227(a)(2)(A)(iii); 8 U.S.C. § 1229b(a)(3).

      The California Court of Appeal did not err in rejecting this claim. Two San

Diego prosecutors submitted declarations stating unequivocally that they would not

have accepted an upward plea because it was against their office’s policy to do so.

Lopez’s only evidence to the contrary was his trial counsel’s unsubstantiated belief

that he could have successfully negotiated the plea. Lopez did not introduce any

evidence supporting this belief—e.g., evidence that the San Diego District

Attorney’s Office had ever accepted an upward plea in similar circumstances.




                                          3
      Also, despite his arguments on appeal, Lopez cannot show a factual basis

supporting any nonaggravated felony. Without a factual basis, the trial court could

not have accepted any upward plea. Cal. Penal Code § 1192.5.

      The California Court of Appeal did not unreasonably conclude that Lopez

failed to show prejudice on this claim. See § 2254(d)(1). Nor was it unreasonable

to credit the prosecutors’ specific declarations over the unsubstantiated conjecture

offered by Lopez’s counsel. See § 2254(d)(2). Lopez’s citations to Taylor v.

Maddox, 366 F.3d 992, 1005–06 (9th Cir. 2004), which involved a state court’s

disregard for “highly probative” evidence about a jailhouse confession, are

unavailing.

      Finally, we decline to remand to the district court for an evidentiary hearing.

Lopez has not presented a “colorable claim” of ineffective assistance. See Earp v.

Ornoski, 431 F.3d 1158, 1166–67 (9th Cir. 2005). And even if Lopez had

presented a colorable claim, it is unclear whether remanding for a federal

evidentiary hearing would serve any purpose in light of the Supreme Court’s recent

decision in Cullen v. Pinholster, 131 S. Ct. 1388, 1398, 1400 n.7 (2011) (holding

that federal habeas review under § 2254(d) is limited to the state-court record).

      AFFIRMED.




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