                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 01 2012

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




                            FOR THE NINTH CIRCUIT



EUGENE ANTHONY LINDER,                           No. 10-16407

              Plaintiff - Appellant,             D.C. No. 3:07-cv-00425-HDM-
                                                 RAM
  v.

BILL DONAT and NEVADA                            MEMORANDUM *
ATTORNEY GENERAL,

              Defendants - Appellees.



                 Appeal from the United States District Court
                          for the District of Nevada
              Howard D. McKibben, Senior District Judge, Presiding

                       Argued and Submitted April 20, 2012
                            San Francisco, California

Before: McKEOWN and N.R. SMITH, Circuit Judges, and BENITEZ, District
Judge.**

       Eugene Anthony Linder, a Nevada state prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his murder


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
conviction and sentence of life with possibility of parole after ten years. Linder

contends his guilty plea, entered pursuant to North Carolina v. Alford, 400 U.S. 25

(1970), was not knowing, intelligent, and voluntary, and that his counsel rendered

ineffective assistance by misadvising him as to the potential sentence as a result of

the Alford plea. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.1

      Linder’s statements at the plea colloquy and in the guilty plea agreement,

coupled with the charges in the information, provided sufficient “strong factual

basis,” see Alford, 400 U.S. at 38, from which a reasonable jury could find that

Linder strangled the victim and that he did so with malice aforethought. See

United States v. Neel, 547 F.2d 95, 96 (9th Cir. 1976) (per curiam) (“The court

need not be convinced beyond a reasonable doubt that an accused is guilty. It need

only be convinced that there is sufficient evidence to justify the reaching of such a

conclusion.”). The Nevada Supreme Court’s conclusion that this evidence was

sufficient to support a charge of second degree murder was not contrary to, or an

unreasonable application of, clearly established federal law. See 28 U.S.C.

§ 2254(d)(1). Moreover, Linder’s statements in the plea agreement and in response

to the trial court’s questions at the plea colloquy indicated his “clearly expressed



      1
        Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our disposition.

                                           2                                    10-16407
desire” to enter the plea, see Alford, 400 U.S. at 38, especially in light of the

mandatory life sentence without possibility of parole or with possibility of parole

after twenty years that he might have received if he was convicted of first degree

murder. See id. at 31 (an Alford plea must represent “a voluntary and intelligent

choice among the alternative courses of action open to the defendant”).

      Similarly, considering the options available to Linder at the time of the plea

colloquy, the Nevada Supreme Court’s conclusion that he suffered no prejudice

from his counsel’s alleged misadvisement as to the potential sentence was not

unreasonable. First, there was no prejudice because the plea agreement clearly

informed Linder that he could be sentenced to life imprisonment with a possibility

for parole after ten years. See Womack v. Del Papa, 497 F.3d 998, 1003 (9th Cir.

2007). Second, in light of the State’s “formidable” case against him, see Premo v.

Moore, 131 S. Ct. 733, 744 (2011), Linder failed to show “a reasonable probability

that, but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” See Hill v. Lockhart, 474 U.S. 52, 59 (1985).

      Linder’s motion to expand the certificate of appealability is denied. See 28

U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

      Linder’s request for judicial notice is granted.

      AFFIRMED.


                                            3                                       10-16407
