Michael Kershaw v. Mike Evan, No. 09-17384 (9th Cir. 2011)

 Annotate this Case
Download PDF
FILED JAN 25 2011 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT MICHAEL UPTON KERSHAW, Petitioner - Appellant, No. 09-17384 D.C. No. 2:06-cv-01430-MMS v. MEMORANDUM * MIKE EVANS, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of California Mary M. Schroeder, Circuit Judge, Presiding Submitted January 10, 2011 ** Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges. California state prisoner Michael Upton Kershaw appeals pro se from the district court s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Kershaw contends that his counsel was ineffective for failing to accurately advise him regarding his potential sentence if he rejected the state s plea offer and proceeded to trial. The state court, after conducting an evidentiary hearing, found that Kershaw failed to show either deficient performance or prejudice regarding this claim. This decision was not contrary to or an unreasonable application of Strickland v. Washington, 466 U.S. 668, 690-93 (1984). See 28 U.S.C. § 2254(d)(1). The state court also found that Kershaw was aware of his potential sentencing exposure under California Penal Code § 667.71. Kershaw failed to present clear and convincing evidence overcoming the presumption of correctness of this finding. Accordingly, the state court s decision was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(2),(e)(1). AFFIRMED. 2 09-17384

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.