                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 14 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

WILLIE LAMAR HARTWELL,                           No. 10-17728

              Petitioner - Appellant,            D.C. No. 2:07-cv-01371-KJD-LRL

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

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                     Argued and Submitted February 14, 2012
                            San Francisco, California

Before: THOMAS, FISHER, and IKUTA, Circuit Judges.

       The Nevada state court’s determination that Willie Lamar Hartwell was not

denied his Sixth Amendment right to the effective assistance of counsel was not an

unreasonable application of clearly established Supreme Court precedent because



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Hartwell cannot show he suffered prejudice due to any deficiency of counsel. 28

U.S.C. § 2254(d); see Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000). Even

assuming that Hartwell’s indications triggered his counsel’s duty to consult, the

Nevada state court could reasonably conclude that Hartwell was not deprived of an

appeal, given that the Nevada Supreme Court directed the state trial court to

consider all of Hartwell’s “direct appeal” claims even if it determined that counsel

was not ineffective; Hartwell argued his claims to the state trial court with the

assistance of counsel; the state trial court rejected those claims on the merits; and

the Nevada Supreme Court rejected the only claim Hartwell elected to raise on

appeal. See id. at 483.

      We also reject Hartwell’s argument that the Nevada sentencing court

violated his federal due process rights by enhancing his sentence under Nevada’s

habitual criminal statute, and therefore need not reach the question whether this

claim was exhausted in state court. See 28 U.S.C. § 2254(b)(2). The Nevada

Supreme Court could reasonably determine, pursuant to state law, that Hartwell

effectively stipulated to at least five prior felony convictions. See Hodges v. State,

78 P.3d 67, 70 (Nev. 2003). Moreover, even if the Nevada Supreme Court erred,

an error of state law such as this one, which does not rise to the level of a federal

due process violation, cannot serve as the basis for federal habeas relief. See


                                           2
Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011); Estelle v. McGuire, 502 U.S. 62,

67–68 (1991).

      AFFIRMED.




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