                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 06 2011

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




                            FOR THE NINTH CIRCUIT



MICHAEL DEARING,                                  No. 08-16983

              Petitioner - Appellant,             D.C. No. 1:03-cv-05364-LJO-JMD

  v.
                                                  MEMORANDUM *
FRANK X. CHAVEZ,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                      Argued and Submitted December 8, 2010
                             San Francisco, California

Before: HUG, D.W. NELSON, and McKEOWN, Circuit Judges.

       Appellant Michael Dearing (“Dearing”) appeals the denial of his petition for

a writ of habeas corpus stemming from his no contest plea to various counts of

sexual abuse of a child in California state court. Dearing received a certificate of

appealability on the question of whether his no contest plea was entered knowingly



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and voluntarily, when the trial court failed to advise him of the maximum

punishment that could be imposed. Dearing also raises the uncertified issue of

whether his no contest plea was invalid because he was not mentally competent to

enter his plea. We have jurisdiction pursuant to 28 U.S.C. § 2253. Finding no

reversible error on the certified question, we affirm. We conclude that reasonable

jurists would not find Dearing’s uncertified claim to be debatable and therefore

decline to expand the certificate of appealability as to that claim.

      It is undisputed that the state trial court failed to advise Dearing of his

maximum possible sentence before accepting his no contest plea. The only

sentence discussed on the record during the plea colloquy was an indeterminate 15-

years-to-life sentence for one count. At sentencing, however, Dearing received a

determinate 82-year sentence for several other counts in addition to the

indeterminate sentence. Dearing maintains that the trial court’s omission

amounted to a constitutional error. We disagree. Although a trial court has a

constitutional obligation to obtain an affirmative waiver of the right against

compulsory self-incrimination, the right to trial by jury, and the right to confront

one’s accusers, see Boykin v. Alabama, 395 U.S. 238, 243 (1969), no Supreme

Court case mandates that the trial court itself must notify a defendant of his

maximum possible sentence before accepting a plea. The state court therefore did


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not err in applying California state precedent, which requires that a plea be set

aside under these circumstances only where prejudice is demonstrated. Dearing

failed to establish prejudice here because he pleaded no contest for the express

purpose of sparing the victim from testifying at trial. Additionally, the record

strongly supports the conclusion that Dearing had personal knowledge of the

sentencing consequences. His trial counsel “recall[ed] specifically discussing the

sentence ranges on the[] particular charges with Mr. Dearing.”

      The court’s determination was not contrary to, or an unreasonable

application of, clearly established federal law as determined by the Supreme Court.

28 U.S.C. § 2254(d)(1).

      AFFIRMED.




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