Mark A. Harris v. WARREN L. MONTGOMERY, Warden

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK A. HARRIS,
Petitioner-Appellant,
v.
WARREN L. MONTGOMERY, Warden,
Respondent-Appellee.
No. 16-56596
D.C. No.
2:11-cv-07519-JVS-JPR
Central District of California,
Los Angeles
ORDER
Before: FISHER, CALLAHAN, and OWENS, Circuit Judges.
The memorandum disposition filed on February 22, 2019, is hereby
amended. The superseding amended memorandum disposition will be filed
concurrently with this order.
The petition for panel rehearing is DENIED. No further petitions for
rehearing or petitions for rehearing en banc will be entertained.
FILED
MAR 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK A. HARRIS,
Petitioner-Appellant,
v.
WARREN L. MONTGOMERY, Warden,
Respondent-Appellee.
No. 16-56596
D.C. No.
2:11-cv-07519-JVS-JPR
AMENDED MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted February 13, 2019
Pasadena, California
Before: FISHER, CALLAHAN, and OWENS, Circuit Judges.
Mark Harris, incarcerated in a California prison, appeals from the district
court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his
sentence. As the parties are familiar with the facts, we do not recount them here.
We review de novo the district court’s denial of habeas relief. See Ybarra v.
McDaniel, 656 F.3d 984, 989 (9th Cir. 2011). However, we may only grant relief
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) if the state
court’s adjudication on the merits was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or (2) “an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C
§ 2254(d). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Harris contests the state court’s denial of his ineffective-assistance-of-
counsel claim under both prongs of 28 U.S.C. § 2254(d); however, neither
argument is successful. First, the state court identified the correct legal principle
and reasonably applied it. See Wiggins v. Smith, 539 U.S. 510, 520-21 (2003)
(overcoming AEDPA deference requires that the application of precedent be
“objectively unreasonable,” not just “erroneous”). Even assuming that counsel
performed deficiently, the state court reasonably concluded that there was no
“reasonable probability that, but for counsel’s errors, [Harris] would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52, 57-59 (1985). Second, the state court made a reasonable factual
determination that Harris’s allegation that he would not have pled guilty if
correctly informed about his parole term was “wholly unbelievable.” In light of
the significant bargain Harris received by pleading guilty and the lack of
contemporaneous evidence that parole was a significant concern to Harris, the state

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court’s conclusion was not an “unreasonable determination of the facts.” 28
U.S.C. § 2254(d)(2); see also Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004) (describing § 2254(d)(2) as a “daunting standard”).
Because we cannot say that the state court’s ruling “was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement,” Harrington v. Richter,
562 U.S. 86, 103 (2011), we affirm the state court’s ineffective-assistance ruling.
2. Harris also argues that his plea was neither voluntary nor knowing
because he was misinformed about his parole term, thus the state court’s holding
contravened clearly established law. Although a guilty plea must be voluntarily
and intelligently made, see Boykin v. Alabama, 395 U.S. 238, 242 (1969), a
defendant must only be informed of a plea’s direct consequences, see Brady v.
United States, 397 U.S. 742, 755 (1970). The United States Supreme Court has
never held that a parole term is a “direct consequence” of a guilty plea. See
Chaidez v. United States, 568 U.S. 342, 350 n.6 (2013) (explaining that Hill v.
Lockhart, 474 U.S. 52, 56 (1985), did not establish “whether parole eligibility” was
a direct or collateral consequence). Nor has the Supreme Court established
whether a Boykin error is structural or requires harmless-error review. As such, the
state court’s holding was neither “contrary to” nor an “unreasonable application
of[] clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

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3. Harris’s final assertion is that the state court unreasonably applied clearly
established law to deny his due-process claim that he was deprived a state-
protected interest, created by California Penal Code § 1170, in an accurate pre-plea
parole advisement. This argument fails, however, because the state statute lacks
both the requisite “substantive predicates” and “explicitly mandatory language” to
create a liberty interest. See Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 462-
63 (1989). For instance, it does not mandate a particular outcome when the law is
violated, such as requiring a judge to reject a plea. See In re Moser, 862 P.2d 723,
729 (Cal. 1993). Federal habeas “is not available to remedy state law errors”;
therefore, this claim is not cognizable for our review. Bonin v. Calderon, 59 F.3d
815, 841 (9th Cir. 1995).
AFFIRMED.

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