                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 24 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

VAUGHN S ARCHER,                                No.    16-56464

                Petitioner-Appellant,           D.C. No.
                                                2:16-cv-00445-JLS-AS
 v.

DANIEL PARAMO, Warden,                          MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                    Argued and Submitted November 15, 2018
                              Pasadena, California

Before: GOULD, PARKER,** and MURGUIA, Circuit Judges.

      Petitioner-appellant Vaughn Archer pleaded no contest to seven charges in

California state court and was sentenced to 27 years and 4 months of

imprisonment. In this habeas petition, Archer argues that he entered the plea

involuntarily and unintelligently because the state trial court and Archer’s counsel


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Barrington D. Parker, United States Circuit Judge for
the U.S. Court of Appeals for the Second Circuit, sitting by designation.
failed to advise Archer that he might be eligible for a reduced sentence under § 654

of the California Penal Code if Archer had proceeded to trial.

      We review the district court’s denial of Archer’s petition de novo. Hurles v.

Ryan, 752 F.3d 768, 777 (9th Cir. 2014). We review the state court’s adjudication

of Archer’s claims under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm the district court’s denial of Archer’s petition.

      1.     In his first claim, Archer argues that his plea was unintelligent and

therefore invalid under Boykin v. Alabama, 395 U.S. 238 (1969), because the state

trial court failed to advise him of the potential applicability of California Penal

Code § 654 to his maximum sentence if convicted at trial. But a plea is still valid

under Boykin even “if the defendant did not correctly assess every relevant factor

entering into his decision[,]” and “[a] defendant is not entitled to withdraw his plea

merely because he discovers long after the plea has been accepted that his calculus

misapprehended . . . the likely penalties attached to alternative courses of action.”

Brady v. United States, 397 U.S. 742, 757 (1970). In Archer’s case, the possible

application of § 654 was not the type of direct consequence that the trial court was

required to discuss with Archer. See Torrey v. Estelle, 842 F.2d 234, 236 (9th Cir.

1988) (“The distinction between a direct and collateral consequence of a plea turns




                                           2
on whether the result represents a definite, immediate and largely automatic effect

on the range of the defendant’s punishment.”) (internal quotation marks omitted).

      Moreover, it would be impracticable to require the state trial court to advise

Archer regarding § 654. The applicability of § 654 is highly fact dependent, and

the court’s determination of whether the section applies is made at sentencing after

the benefit of a trial, which usually brings the relevant facts to light. See People v.

Cleveland, 87 Cal. App. 4th 263, 267 (Ct. App. 2001); People v. Ross, 201 Cal.

App. 3d 1232, 1240–41 (Ct. App. 1988). Whether and to what extent § 654 would

have applied if Archer had been convicted at trial was entirely speculative at the

plea phase (and still is now, because there has never been a trial or evidentiary

hearing). The state trial court was not required, under any “clearly established

Federal law,” to engage in this speculative analysis before accepting Archer’s plea.

See 28 U.S.C. § 2254(d)(1). Accordingly, the California Court of Appeal

reasonably rejected this claim.

      2.     We also affirm the district court’s denial of Archer’s claim of

ineffective assistance of counsel based on his allegation that his counsel at the plea

stage failed to advise him of § 654 and its potential application to his charges.

Even if we assume that Archer’s counsel was deficient, Archer has not

demonstrated prejudice. See Strickland v. Washington, 466 U.S. 668, 688, 694

(1984) (holding that to prevail on a claim of ineffective assistance of counsel, a


                                           3
defendant must show that “counsel’s representation fell below an objective

standard of reasonableness” and “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different”); Hill v. Lockhart, 474 U.S. 52, 59 (1985) (holding that in the context of

a plea, to demonstrate prejudice, “the defendant must show that there is a

reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial”). Given that Archer was facing a

possible indeterminate life sentence if he proceeded to trial, the California Court of

Appeal was not “objectively unreasonable” in concluding that Archer failed to

present evidence demonstrating a reasonable probability that he would have

rejected the plea deal if he had known about § 654’s possible application to his

charges. See White v. Woodall, 572 U.S. 415, 419 (2014) (An unreasonable

application must be “objectively unreasonable, not merely wrong; even clear error

will not suffice.”) (internal quotation marks omitted).

AFFIRMED.




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