                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             APR 12 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSE MIGUEL GUTIERREZ,                           No.    16-15704

              Petitioner-Appellant,              D.C. No.
                                                 2:10-cv-00109-JCM-NJK
 v.

BRIAN E. WILLIAMS and STATE OF                   MEMORANDUM*
NEVADA,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                       Argued and Submitted March 12, 2018
                            San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and FEINERMAN,**
District Judge.

      The district court properly denied Jose Gutierrez’s petition for a writ of

habeas corpus. The Nevada Supreme Court determined that Gutierrez entered his


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
                                                                              Page 2 of 5
plea knowingly, intelligently, and voluntarily, and it rejected Gutierrez’s

ineffective assistance of counsel claim. Those decisions are not contrary to, or

based on an unreasonable application of, clearly established federal law, nor are

they based on unreasonable factual determinations. See 28 U.S.C. § 2254(d).

      1. Gutierrez’s first claim, that his plea was not knowing and voluntary, fails.

The state court reasonably determined that Gutierrez’s plea was knowing and

voluntary because the penalties discussed at the arraignment were “consistent”

with the written agreement’s description of possible penalties. Although defense

counsel misstated Gutierrez’s eligibility for probation as to Count II at the

arraignment, the hearing transcript indicates that Gutierrez understood he faced a

sentence of at least ten years’ imprisonment based on Count I. Under the terms of

the written agreement, which clarified that probation was not available, Gutierrez

faced precisely the same minimum sentence. The trial court could have imposed a

sentence of less than ten years on Count II and ordered that sentence to run

concurrently with the mandatory minimum sentence under Count I. In practice,

such a sentence would be indistinguishable from the sentence Gutierrez believed

was available to him at the arraignment: ten years on Count I and probation on

Count II. Accordingly, the state court’s factual conclusion that the discussed

sentences were “consistent” is objectively reasonable.
                                                                          Page 3 of 5
      Gutierrez’s claim that his plea was not knowing and voluntary because he

was promised concurrent sentences is unavailing as well. The Nevada Supreme

Court resolved Gutierrez’s voluntariness claim without explicitly discussing this

argument, but an independent review of the record supports the state court’s

decision. See Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). The

presentence investigation report recommended consecutive sentences, and a

translator went through the report with Gutierrez to ensure he understood it. At the

sentencing hearing, Gutierrez’s counsel urged the court to deviate from that

recommendation but stated that Gutierrez had been advised that the court had

discretion to impose consecutive sentences. And Gutierrez acknowledged that his

sentence was in the trial judge’s hands. These exchanges admittedly occurred after

Gutierrez entered his guilty plea. But the fact that Gutierrez never objected to the

prospect of consecutive sentences contradicts his assertion that he believed he was

guaranteed concurrent sentences.

      The record also supports the conclusion that Gutierrez understood the

elements of the offenses to which he pleaded guilty. At the arraignment, the trial

court discussed the nature of the charges, and Gutierrez admitted that he had been

caught in possession of methamphetamine in quantities that violated Nev. Rev.

Stat. § 453.3385(1)(b) and (c). Defense counsel also represented that he had
                                                                            Page 4 of 5
discussed the charges with Gutierrez at length. Faced with this record, the state

court reasonably determined that Gutierrez’s plea was knowing and voluntary.

      Finally, we are not persuaded that the lack of a written plea agreement at the

time Gutierrez pleaded guilty rendered his plea involuntary. Although state law

requires such a written plea agreement, Gutierrez has cited no federal authority

imposing a similar requirement. Therefore, this argument cannot serve as an

independent basis for habeas relief. See 28 U.S.C. § 2254(a) (specifying that a

federal court can entertain habeas petitions “only on the ground that [the petitioner]

is in custody in violation of the Constitution or laws or treaties of the United

States”).

      2. The state court’s denial of Gutierrez’s ineffective assistance of counsel

claim was not an unreasonable application of federal law or based on unreasonable

factual determinations. Even assuming defense counsel’s performance was

deficient, Gutierrez must show that there is a reasonable probability that but for

counsel’s errors he would have insisted on going to trial. See Hill v. Lockhart, 474

U.S. 52, 59 (1985). He has not done so. As explained above, the record belies

Gutierrez’s argument that his plea was involuntary. And had Gutierrez proceeded

to trial, he would have faced seven drug-related charges, four of which could have

resulted in life sentences with the possibility of parole. Gutierrez has not
                                                                          Page 5 of 5
established that there is a reasonable probability that he would have taken such a

risk.

        AFFIRMED.
