                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              APR 27 2015

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

ESSIE SIMPSON, III,                              No. 12-55908

              Petitioner - Appellant,            D.C. No. 2:09-cv-01825-MMM-
                                                 AGR
  v.

JOHN MARSHALL,                                   MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                  Margaret M. Morrow, District Judge, Presiding

                      Argued and Submitted October 8, 2014
                              Pasadena California

Before: PREGERSON, TALLMAN, and BEA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
      Essie Simpson appeals the district court’s denial of his habeas corpus

petition. Simpson alleges that his trial counsel was ineffective for failing to inform

him that his guilty plea would require gang registration.1 We affirm.

      We review the district court’s denial of a petition for a writ of habeas corpus

de novo. Blair v. Martel, 645 F.3d 1151, 1154 n.1 (9th Cir. 2011). Because

Simpson’s federal habeas petition was filed after the enactment of AEDPA in

1996, that statute governs his petition. See Woodford v. Garceau, 538 U.S. 202,

210 (2003). Simpson’s ineffective assistance of counsel claim was made in his

state court petition for habeas corpus, which the Supreme Court of California

denied summarily. A summary denial constitutes a denial on the merits for

AEDPA purposes. Harrington v. Richter, 131 S.Ct. 770, 784 (2011). If there is

“any reasonable argument” supporting a summary denial, habeas corpus must be

denied. Id. at 788.

      Under Strickland v. Washington, 466 U.S. 668 (1984), the habeas petitioner

who alleges ineffective assistance of counsel must show both that counsel was

ineffective and that the ineffectiveness prejudiced him. To show prejudice where



      1
         Under California Penal Code § 186.30, a person convicted of a crime with
a gang enhancement is required to register with the chief of police of the city in
which he resides within 10 days of his release from custody or with 10 days of his
arrival in the city, whichever occurs first.

                                          2
the petitioner has pleaded guilty pursuant to a plea bargain, the petitioner “must

convince the court that a decision to reject the plea bargain would have been

rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

      We assume without deciding that Simpson’s counsel was ineffective, and

conclude that Simpson cannot establish prejudice. Simpson argues that he had a

subjective desire to avoid being marked as a gang member, and would have traded

a longer prison sentence for a chance to avoid being officially pegged as a gang

member. Simpson proffers no other explanation why the gang registration

requirement would lead him to reject the plea bargain. And Simpson does not

claim that if the gang registration requirement did not exist, he would not have

pleaded guilty. Thus, what pegs him as a gang member is the guilty plea colloquy,

which would have occurred regardless the gang registration requirement. Simpson

was officially pegged as a gang member when he admitted during the plea

colloquy to having committed the crime “for the benefit of, in connection with, or

in association with” a gang; the gang registration requirement of which he now

complains is thus not the only cause of his being labeled a gang member. Thus,

were we to find that Simpson was not told of the gang registration requirement and

that it would be rational to reject a plea bargain to avoid being labeled a gang

member, Simpson’s petition would nonetheless fail.

                                          3
      Because the California Supreme Court could reasonably have determined

that Simpson was not prejudiced by his counsel’s ineffectiveness, this court cannot

grant Simpson’s habeas petition. The district court’s judgment denying Simpson’s

habeas petition is therefore

      AFFIRMED.




                                         4
