                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 23 2010

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




                            FOR THE NINTH CIRCUIT



HAL ELKINS,                                      No. 09-35034

              Petitioner - Appellant,            D.C. No. 3:06-cv-01180-MA

  v.
                                                 MEMORANDUM *
BRIAN BELLEQUE, Superintendent,
Oregon State Penitentiary,

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Malcolm F. Marsh, District Judge, Presiding

                        Argued and Submitted June 9, 2010
                                Portland, Oregon

Before: HALL, THOMPSON, and McKEOWN, Circuit Judges.

       Hal Elkins appeals the denial of a habeas corpus petition challenging his

state court conviction of the murder of his then girlfriend, Kathryn Linn, the

attempted murder of Linn’s former boyfriend, Marvin Eugene Mayer, and two

counts of first degree assault of Mayer with a firearm. At trial, Elkins mounted an


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
unsuccessful defense of extreme emotional disturbance, claiming he was drunk,

despondent, and suicidal when he confronted and shot Linn and Mayer as the two

of them were having dinner at a Salem, Oregon restaurant.

      Elkins was sentenced to 33 years in state prison—including a determinate

sentence of 25 years for the murder pursuant to Oregon Revised Statutes section

163.115(3)(c) (1993), 60 months for the merged assault counts, and 36 months for

the attempted murder. In this appeal, Elkins contends that the state courts erred in

rejecting his claim that his trial counsel was ineffective in advising him about a

plea offer under which he would have pled guilty to murder and attempted murder,

and accepted responsibility for the criminal episode, in exchange for dismissal of

the assault counts and a recommended sentence of 13 years pursuant to the 1993

Oregon sentencing guidelines—including 120 months for the murder and 36

months for the attempted murder, which was the “presumptive” sentence under

Oregon’s sentencing guidelines at the time.

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), federal habeas relief is available if the state court’s adjudication of the

merits of the habeas claim “resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The Supreme


                                          -2-
Court has held that Strickland v. Washington, 466 U.S. 668 (1984), is the “clearly

established” federal law governing habeas claims of ineffective assistance of

counsel under AEDPA. Williams v. Taylor, 529 U.S. 362, 391 (2000). Under

Strickland, to establish ineffective assistance of counsel under the Sixth

Amendment, the petitioner must demonstrate that counsel’s performance “fell

below an objective standard of reasonableness … under prevailing professional

norms,” 466 U.S. at 688, and that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different,” id. at 694. In order to satisfy Strickland’s prejudice prong in the context

of the plea bargaining process, the petitioner must show “that there is a reasonable

probability that, but for counsel’s errors,” he would have accepted the plea offer,

rather than insisting on going to trial. See Hill v. Lockhart, 474 U.S. 52, 58-59

(1985); Weaver v. Palmateer, 455 F.3d 958, 966 (9th Cir. 2006).

      Trial counsel admitted that he did not specifically advise Elkins about the

Oregon Supreme Court’s decision in State v. Morgan, 316 Or. 553 (Or. 1993),

which was decided before the prosecutor’s plea offer was set to expire. Morgan

confirmed that, notwithstanding the adoption of the state’s sentencing guidelines, a

determinate sentence of up to 25 years was still authorized for murder pursuant to

former section 163.115(3)(c) of the Oregon Revised Statutes. Id. at 558.


                                          -3-
However, Elkins’s trial counsel credibly testified that he thoroughly discussed the

plea offer with his client, including: the sentencing ranges for murder, attempted

murder, and first degree assault with a firearm under the Oregon sentencing

guidelines; the possibility of upward departures if he went to trial and was

convicted on all counts; and the possibility of consecutive sentences because there

were two direct victims. As the Oregon Attorney General explains, a departure

sentence for murder under the 1993 Oregon sentencing guidelines could have more

than doubled the recommended sentence in the plea offer, and could have exceeded

the 25-year sentence imposed after trial. Nevertheless, Elkins contends that trial

counsel’s performance was constitutionally deficient because he did not explain the

significance of the Morgan decision.

      We need not decide whether trial counsel’s performance fell below an

objective standard of reasonableness under prevailing professional norms, because

even if it did, Elkins has not established that he was prejudiced by counsel’s failure

to advise him about the Morgan decision. See Strickland, 466 U.S. at 697 (courts

may consider either prong of the Strickland test first and need not address both

prongs if defendant fails on one); Weaver, 455 F.3d at 966 (“We are well-advised

to bypass scrutinizing a criminal-defense attorney’s representation if the defendant

cannot show that he was prejudiced by it.”).


                                          -4-
      As the state court found in the post-conviction relief proceedings, Elkins

decided to reject the plea offer, knowing he might face a significantly longer

sentence after trial, because he was adamant that he was not guilty of and would

never plead guilty to murder, and that he wanted to present his “extreme emotional

disturbance” theory to the jury. Moreover, Elkins presented no actual evidence

that, had he been advised about the meaning of Morgan, he would have accepted

the plea offer rather than insisting on going to trial. As Elkins’s counsel in the

state post-conviction appeal candidly acknowledged, although the unverified

petition alleged that Elkins would have “accepted the plea bargain” if he had been

aware of the Morgan decision, Elkins never “directly testif[ied] that he would have

taken the plea agreement had he realized the amount of time he actually faced as a

consequence of rejecting the plea offer.” On appeal to this court, Elkins has not

proven otherwise. He has, thus, failed to establish prejudice under the second

prong of Strickland—i.e., that there is a reasonable probability he would have

accepted the plea bargain if he had been advised of his exposure to a determinate

sentence of up to 25 years for the murder of Linn. 466 U.S. at 694; see also

Weaver, 455 F.3d at 966.

      The judgment of the district court is AFFIRMED.




                                          -5-
