Michael Upton Kershaw v. MIKE EVANS, Warden

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL UPTON KERSHAW,
Petitioner - Appellant,
v.
MIKE EVANS, Warden,
Respondent - Appellee.
No. 09-17384
D.C. No. 2:06-cv-01430-MMS
MEMORANDUM*
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.
FILED
JAN 25 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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09-17384 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.

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