                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 19 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


LEWIS PRICE, III,                                No. 13-35155

              Petitioner - Appellant,            D.C. No. 1:12-cv-00022-CSO

 v.
                                                 MEMORANDUM*
LEROY KIRKEGARD; TIMOTHY C.
FOX, Attorney General,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Montana
                   Carolyn S. Ostby, Magistrate Judge, Presiding

                             Submitted May 4, 2015**
                               Seattle, Washington

Before: KLEINFELD, GOULD, and CHRISTEN, Circuit Judges.

      Price argues that the prosecution breached the plea agreement in this case by

submitting letters to the sentencing judge that were written by the victim and by a



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
witness.1 He relies on Santobello v. New York, 404 U.S. 257 (1971). Price urges

us to adopt his understanding of the plea agreement, which he contends precluded

the prosecution from presenting any evidence other than live testimony from the

probation officer and the victim. We do not adopt Price’s reading of the plea

agreement or agree that the prosecution breached it. The prosecution

recommended the agreed-upon sentence at sentencing, and nothing in the plea

agreement’s plain language restricted submission of the victim’s and witness’s

letters. Montana law allows victims to present statements either in writing or under

oath during sentencing, and the parties’ plea agreement expressly contemplated

that the parties would present evidence at sentencing. Mont. Code. Ann. § 46-18-

115; Plea Agreement ¶ 2 (“The parties agree that at the sentencing hearing, the

State and the Defendant may present and argue evidence in support of the plea

agreement.”). Price’s Santobello claim fails.

      Price further argues that his counsel was ineffective for failing to object to

the letters’ submission at sentencing. We disagree. There is a “doubly deferential”

standard that federal courts apply to state court decisions when the Anti-Terrorism



      1
         The government argues that Price’s breach of plea agreement claim is
procedurally defaulted. We need not reach this issue, because this claim “clearly
fails on the merits.” Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012);
see also Lambrix v. Singletary, 520 U.S. 518, 525 (1997).
                                          2
and Effective Death Penalty Act (AEDPA) applies to a § 2254 petitioner’s

Strickland claim. Price has not shown that there is no “reasonable argument that

counsel satisfied Strickland’s deferential standard.” Harrington v. Richter, 562

U.S. 86, 89 (2011); see generally Strickland v. Washington, 466 U.S. 668 (1984).

Trial counsel did not object to the letters’ submission generally, but he did contest

parts of them. There is no reasonable argument that Price’s counsel’s decision not

to object to the letters’ submission at sentencing fell outside “the wide range of

reasonable professional assistance” that the Sixth Amendment requires.

Strickland, 466 U.S. at 689. Also, upon any objection to the prosecutor submitting

the letters of witness and victim, it is reasonable to think that such objection would

have been overruled and the letters considered at sentencing. The state appeals

court reasonably could have concluded that neither the deficient lawyer nor the

prejudice element of ineffective assistance of counsel under Strickland was

satisfied. Price’s ineffective assistance of counsel claim fails.

      AFFIRMED.




                                           3
