Clinton Sproles v. Jim Salmonsen; Attorney General for the State of Montana

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLINTON SPROLES,
Petitioner-Appellant,
v.
JIM SALMONSEN; ATTORNEY
GENERAL FOR THE STATE OF
MONTANA,
Respondents-Appellees.
No. 23-35338
D.C. No. 2:22-cv-00018-BMM
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted September 12, 2023**
Before: CANBY, CALLAHAN, and OWENS, Circuit Judges.
Montana state prisoner Clinton Sproles appeals pro se from the denial of his
28 U.S.C. § 2254 habeas petition challenging his 25-year sentence under
Montana’s persistent felony offender (“PFO”) statute. We have jurisdiction under
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
SEP 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 23-35338
28 U.S.C. § 2253. We review the district court’s decision to deny habeas relief de
novo, see Fox v. Johnson, 832 F.3d 978, 985 (9th Cir. 2016), and we affirm.
Sproles contends that his appellate counsel was ineffective because he failed
to challenge the timeliness of the state’s notice of its intent to seek Sproles’s
designation as a PFO. However, the record shows that counsel researched the
issue and explained to Sproles why a claim regarding the timeliness of the PFO
notice lacked merit. Given the governing caselaw interpreting the applicable PFO
statute, counsel’s decision to forego that claim and raise one that presented a novel
legal issue was neither deficient nor prejudicial.1 See Strickland v. Washington,
466 U.S. 668, 690, 694 (1984); Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir.
1989) (“[T]he weeding out of weaker issues is widely recognized as one of the
hallmarks of effective appellate advocacy.”).
AFFIRMED.
1 We need not determine whether to apply deference under the Antiterrorism and
Effective Death Penalty Act, see 28 U.S.C. § 2254(d), to the Second Judicial
District Court’s resolution of this claim because we agree with the federal district
court that the claim fails even under de novo review. See Fox, 832 F.3d at 986.

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