ROBERT MENEFEE V. LELAND MCEWEN, No. 13-17046 (9th Cir. 2014)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT DEC 11 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS ROBERT JAMES MENEFEE, Petitioner - Appellant, No. 13-17046 D.C. No. 2:12-cv-00512-JKS v. MEMORANDUM* L. S. MCEWEN, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of California James K. Singleton, Senior District Judge, Presiding Submitted December 9, 2014** San Francisco, California Before: O’SCANNLAIN, FISHER and HURWITZ, Circuit Judges. Robert James Menefee appeals the denial of his petition for habeas corpus under 28 U.S.C. § 2254. Reviewing the district court’s determination de novo, see Hurles v. Ryan, 752 F.3d 768, 777 (9th Cir. 2014), 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). The state court determined that Menefee was not prejudiced under Strickland v. Washington, 466 U.S. 668 (1984), by his attorney’s failure to inform him that he was subject to a five-year sentencing enhancement for a prior conviction. Menefee argues that, had he been made aware of this enhancement, he would have accepted a plea offer for a lower sentence than he ultimately received. Based on the record, the state court found that Menefee was made aware during a courtroom exchange between the prosecutor and trial judge, in Menefee’s presence, that he faced 13 years in prison for his charges – a sentence that necessarily included a five-year enhancement. This was not an “unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2). Because Menefee had rejected the plea deal he was offered with knowledge of his exposure to the fiveyear sentencing enhancement, the state court concluded he was not prejudiced by his attorney’s lack of advice. This determination was not “contrary to, or . . . an unreasonable application of” Strickland. § 2254(d)(1). AFFIRMED. 2
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