                                                                               FILED
                             NOT FOR PUBLICATION
                                                                                 DEC 08 2015
                     UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


CHRISTOPHER WOOD,                                   No. 14-15589

               Petitioner - Appellant,              D.C. No. 2:11-cv-01667-JAD-
                                                    GWF
 v.

DWIGHT NEVEN, Warden and                            MEMORANDUM*
ATTORNEY GENERAL OF THE STATE
OF NEVADA,

               Respondents - Appellees.


                     Appeal from the United States District Court
                               for the District of Nevada
                     Jennifer A. Dorsey, District Judge, Presiding

                         Argued and Submitted May 12, 2015
                              San Francisco, California

Before: KOZINSKI, PAEZ, and CLIFTON, Circuit Judges.

      Christopher Wood appeals the district court’s dismissal of his habeas

petition, alleging, inter alia, that his counsel at the time of his plea was ineffective

for failing to advise him of the availability of an appeal. The district court



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
dismissed claim E(3) on the grounds that it was untimely and unexhausted. The

parties continue to dispute whether claim E(3) is exhausted and relates back to

Wood’s original federal habeas petition. Under 28 U.S.C. § 2254(b)(2) a habeas

petition may be denied on the merits, notwithstanding the failure of the petitioner

to exhaust his claims in state court. This is a proper case to invoke our authority

under § 2254(b)(2), because Wood has suffered no prejudice and, therefore, his

ineffective assistance of counsel claim must fail. See Strickland v. Washington,

466 U.S. 668, 687 (1984). It is thus “perfectly clear” that his petition is meritless.

See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Because we may affirm

the district court on “any basis shown by the record,” Dunne v. Henman, 875 F.2d

244, 247 (9th Cir. 1989), we deny Wood’s petition on its merits rather than on the

district court’s procedural analysis.

      Wood seeks to retain the benefit of his plea bargain. Thus, he only

challenges the application of Nevada’s “small” habitual criminal sentencing

enhancement, Nev. Rev. Stat. § 207.010, because Wood argues that if he prevails,

Nevada law would permit him to maintain his original sentence and excise only the

enhancement.

      The Nevada state courts, however, already considered this sole underlying

claim and rejected it. Wood filed a pro se state habeas petition alleging that his


                                           2
counsel was ineffective for failing to object to the district court’s imposition of the

enhancement, notwithstanding the state’s untimely filing of the notice of habitual

criminality. In assessing that petition, the Nevada Supreme Court concluded that

Wood’s counsel waived the notice requirement as part of a plea bargain from

which Wood gained “substantial benefit”; so substantial, in fact, that Wood “failed

to demonstrate a reasonable probability that he would not have pleaded guilty and

would have insisted on going to trial had counsel not waived the timely notice.”

      Thus, Wood has received review of the sole claim he says he would appeal

and would have appealed were it not for his attorney’s faulty advice. Even if his

attorney were ineffective, Wood can show no prejudice, and it is thus “perfectly

clear” that his petition is meritless. Cassett, 406 F.3d at 624. Having concluded

that claim E(3) fails on the merits, we need not address Wood’s remaining

assignments of error.

      AFFIRMED.




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