                                                                            FILED
                            NOT FOR PUBLICATION                              MAR 04 2010

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




                            FOR THE NINTH CIRCUIT



RICHARD MANUEL BURGOS,                           No. 08-16896

              Petitioner - Appellant,            D.C. No. 2:04-cv-00021-FCD-
                                                 DAD
  v.

M. YARBOROUGH; BILL LOCKYER,                     MEMORANDUM *
Attorney General,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                 Frank C. Damrell, Senior District Judge, Presiding

                      Argued and Submitted February 11, 2010
                             San Francisco, California

Before: THOMPSON and McKEOWN, Circuit Judges, and ZILLY, ** Senior
District Judge.

       Richard Manuel Burgos appeals the district court’s denial of his petition for

a writ of habeas corpus, which alleged ineffective assistance of trial and appellate


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
counsel. Burgos, a California state prisoner, followed his trial counsel’s advice in

pleading no contest to several criminal charges and sentencing enhancements,

while pleading not guilty to a “strike” (under California’s “Three Strikes” law)

which was later dismissed. We have jurisdiction pursuant to 28 U.S.C. § 2253, and

we affirm.

      Burgos filed his federal habeas petition after April 24, 1996; thus, the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this case.

Juan H. v. Allen, 408 F.3d 1262, 1270 (9th Cir. 2005). Under AEDPA, we deny a

habeas corpus petition unless the state court’s adjudication of the claims resulted in

a decision contrary to, or involving an unreasonable application of, “clearly

established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d) (listing other grounds for granting a habeas corpus petition).

We review de novo a district court’s denial of a state prisoner’s petition for habeas

relief. Juan H., 408 F.3d at 1269 n.7.

      Burgos presents two certified issues.

I.     Whether Burgos’ plea of no contest was involuntary

      The “clearly established Federal law” at issue in this case is the test for

ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S.

668 (1984). For an ineffective assistance of counsel claim, a petitioner must show:


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(1) deficient performance by counsel that (2) prejudiced petitioner by adversely

affecting the outcome of the proceeding. Strickland, 466 U.S. at 687-93. In

particular, a petitioner challenging the voluntariness of a no contest plea “must

show that (1) his ‘counsel’s representation fell below an objective standard of

reasonableness,’ and (2) ‘there is a reasonable probability that, but for [his]

counsel’s errors, he would not have pleaded guilty and would have insisted on

going to trial.’ ” Womack v. Del Papa, 497 F.3d 998, 1002 (9th Cir. 2007)

(quoting, with addition, Hill v. Lockhart, 474 U.S. 52, 57-59 (1985)); see Miller v.

McCarthy, 607 F.2d 854, 856 (9th Cir. 1979) (explaining that federal constitutional

principles governing guilty pleas in California apply equally to no contest pleas).

      Burgos contends that his trial counsel failed to conduct a reasonable

investigation into potential defenses and, thus, failed to uncover allegedly

exculpatory evidence. Even assuming the performance of counsel was deficient,

Burgos fails to show the existence of exculpatory evidence. Burgos, therefore, has

not shown prejudice, as he has not demonstrated a reasonable probability that the

result of the proceeding would have been different. Furthermore, when asked at

the plea colloquy, “Are you entering this plea freely and voluntarily?”, Burgos

responded, “Yes.” See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn

declarations in open court carry a strong presumption of verity.”).


                                           3
II.   Whether Burgos’ appellate counsel rendered ineffective assistance by
      failing to raise claims on appeal

      Where a claim of ineffective assistance of counsel is based on an appellate

attorney’s failure to raise claims on appeal, the claimant must show (1) that his

counsel was objectively unreasonable in failing to raise those claims, and (2) that

the claims had a reasonable probability of success on appeal. Smith v. Robbins,

528 U.S. 259, 285 (2000).

      Burgos argues that his State appellate counsel erred by failing to challenge

the voluntariness of Burgos’ plea on the ground that Burgos had limited

opportunities to confer with his trial counsel and to participate in his defense.

Burgos, however, has failed to show any prejudicial error by his trial counsel

arising from these alleged circumstances. Even assuming deficient performance by

Burgos’ appellate counsel in failing to raise the claims on appeal, Burgos does not

show that any unasserted claim had a reasonable probability of success. Thus,

Burgos has failed to show prejudice. See Featherstone v. Estelle, 948 F.2d 1497,

1506-07 (9th Cir. 1991).

      Burgos also argues, without support, that his appellate counsel erred by

failing to challenge Burgos’ conviction and sentence on various other grounds.

These claims fail because Burgos has not shown that the unasserted claims had any

probability of success.

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                                  CONCLUSION

      We deny Burgos’ petition as to the two certified issues. Burgos’ claims of

ineffective assistance of trial counsel and appellate counsel are foreclosed by his

failure to establish prejudice. We also conclude that the uncertified claims raised

by Burgos in his opening brief do not warrant consideration, and we deny his

motion to expand the certificate of appealability to include them. See 9th Cir. R.

22-1(e).

      AFFIRMED.




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