                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 12 2015

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



                           FOR THE NINTH CIRCUIT


CHOKCHAI KRONGKIET,                              No. 13-15477

              Petitioner - Appellant,            D.C. No. 2:11-cv-02354-GEB-
                                                 CKD
  v.

JEFFREY BEARD,                                   MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Garland E. Burrell, Jr., Senior District Judge, Presiding

                           Submitted March 10, 2015**
                            San Francisco, California

Before: BYBEE, CALLAHAN, and OWENS, Circuit Judges.

       California state prisoner Chokchai Krongkiet appeals the denial of his 28

U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253. We




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo the district court’s decision to deny his habeas petition, see

Clabourne v. Ryan, 745 F.3d 362, 370 (9th Cir. 2014), and we affirm.

      Krongkiet pleaded guilty to five counts of forcible lewd and lascivious

conduct with a child under the age of fourteen pursuant to a plea deal in which he

received a sentence of forty years imprisonment. Prior to sentencing, he asked his

appointed counsel to file a motion to withdraw his plea, but his counsel refused to

do so. On appeal, he argues that his counsel was constitutionally ineffective under

Strickland v. Washington, 466 U.S. 668 (1984), by: (1) depriving him of absolute

control over the decision whether to file a motion to withdraw his guilty plea; and

(2) arguing against his interests during the hearing on his request for substitute

counsel. We reject the first claimed error because the Supreme Court has not

clearly established that a defendant has absolute control over the decision to file a

motion to withdraw his guilty plea. See Knowles v. Mirzayance, 556 U.S. 111, 122

(2009) (“[I]t is not ‘an unreasonable application of clearly established Federal law’

for a state court to decline to apply a specific legal rule that has not been squarely

established by this Court.” (quoting 28 U.S.C. § 2254(d)(1)) (some internal

quotation marks omitted)). We reject the second claimed error because counsel did

not violate his duty of loyalty by following his obligation under state law to

explain his reasons for not filing the requested motion. See Nix v. Whiteside, 475


                                           2
U.S. 157, 168 (1986); People v. Horton, 11 Cal. 4th 1068, 1123 (1995) (“A

defendant’s expression of dissatisfaction with appointed counsel, necessitating a

Marsden hearing, does not compel counsel to concede the allegedly inadequate

representation but rather requires counsel to respond truthfully to those

allegations.”). But even assuming deficient performance, Krongkiet cannot show

prejudice because he has not demonstrated that there is a “reasonable probability”

that, but for his counsel’s errors, he would have gone to trial. See Premo v. Moore,

562 U.S. 115, 131-32 (2011).

      In the alternative, Krongkiet argues that his due process rights were violated

by the trial court’s refusal to entertain his pro se motion to withdraw his guilty

plea. To the extent this claim is based on the argument that a defendant has

absolute control over the decision to file a motion to withdraw his guilty plea, it

again fails because the Supreme Court has not clearly established such a right. See

28 U.S.C. § 2254(d)(1). To the extent it is distinct—and assuming Krongkiet even

attempted to make a pro se motion—this claim fails because the trial court need not

entertain such a motion while Krongkiet remained represented by counsel. See

United States v. Bergman, 813 F.2d 1027, 1030 (9th Cir. 1987).

      AFFIRMED.




                                           3
