                                                                             FILED
                            NOT FOR PUBLICATION                                 JAN 07 2010

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




                            FOR THE NINTH CIRCUIT



RONALD G. RINER,                                  No. 07-16664

              Petitioner - Appellant,             D.C. No. CV-99-00258-
                                                  ECR/RAM
  v.

FRANKIE SUE DEL PAPA; et al.,                     MEMORANDUM *

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Edward C. Reed, District Judge, Presiding

                      Argued and Submitted December 2, 2009
                             San Francisco, California

Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.

       Defendant Ronald Riner appeals the district court’s denial of his motion for

reconsideration, wherein he alleged the district court erred by finding his habeas

claims unexhausted in the state court. This court granted a certificate of

appealability as to the following issue: “whether the district court erred in



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
dismissing as unexhausted Riner’s claim that counsel was ineffective in failing to

investigate the effects of Elavil and allowing him to plead guilty under the

influence of that drug; and if so, whether Riner received ineffective assistance for

the above reasons.” We note that an earlier Ninth Circuit panel remanded this case

back to the district court “for reconsideration in light of the Supreme Court’s []

decision in Rhines v. Weber.” On remand, instead of arguing this issue, Riner filed

a motion for reconsideration arguing that the district court erred in the first instance

by ruling his state claims unexhausted; the district court denied that motion. Even

if we were to assume that this case is properly before this panel now and even were

we to assume that the district court erred in ruling Riner’s claims unexhausted, we

nevertheless conclude that Riner did not receive ineffective assistance of counsel.

      Riner’s appeal is governed by 28 U.S.C. § 2254. Under that statute, federal

courts will deny a defendant’s habeas petition, unless “the state court applies a rule

that contradicts the governing law set forth in [United States Supreme Court]

cases,” Williams v. Taylor, 529 U.S. 362, 405 (2000), or “if the state court

confronts a set of facts that are materially indistinguishable from a decision of [the

United States Supreme Court] and nevertheless arrives at a result different from

[that Court’s] precedent,” id. at 406. Moreover, for the writ to be issued, the state




                                      Page 2 of 4
court’s application of clearly established law must be objectively unreasonable. Id.

at 409–10.

      Additionally, Riner’s ineffective assistance of counsel claim is governed by

Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test, Riner

must prove that: (1) “that counsel’s representation fell below an objective standard

of reasonableness,” id. at 688; and (2) “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. Moreover, when a defendant pleads ineffective

assistance of counsel in relation to a plea of guilty, as Riner has done, he “must

show that there is a reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to trial.” Hill v.

Lockhart, 474 U.S. 52, 59 (1985).

      As to the first prong of the Strickland test, Riner has asserted that his

attorney was ineffective, because he failed to investigate the effects of Elavil on

Riner’s capacity to enter a guilty plea and failed to order a competency test to

prove the matter. We disagree.

      We cannot say that the Nevada state courts’ adjudication of Riner’s claim

was “objectively unreasonable” or contrary to clearly established Supreme Court

precedent. Riner has offered only unverified allegations in his complaint that: (1)


                                     Page 3 of 4
he was under the influence of Elavil at the time of his plea; or (2) that his counsel

was aware of any possible Elavil use at the time. Riner points to no evidence to

prove either of these allegations. Because we afford counsel a strong presumption

of competence under Strickland, we cannot hold that Riner’s counsel was

ineffective.1

       AFFIRMED.




       1
         Moreover, even assuming that every factual allegation that Riner has made
is true, Riner has not alleged in his complaint or any other document that “but for
counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Lockhart, 474 U.S. at 59. Thus, Riner has failed to even properly
allege a federal “ineffective assistance of counsel” claim.


                                     Page 4 of 4
