Sterling Cunio v. Brian Belleque

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STERLING CUNIO,
Petitioner - Appellant,
v.
BRIAN BELLEQUE,
Respondent - Appellee.
No. 10-36017
D.C. No. 6:08-cv-0841-TC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Thomas M. Coffin, Magistrate Judge, Presiding
Argued and Submitted December 6, 2011
Seattle, Washington
Before: TASHIMA, McKEOWN, and TALLMAN, Circuit Judges.
Sterling Cunio, an Oregon state prisoner, appeals the district court’s denial
of his petition for a writ of habeas corpus. Cunio contends that: (1) the
prosecutor’s motion to dismiss two aggravated felony murder counts was a breach
of his agreement to a stipulated facts trial and so rendered his jury trial waiver
FILED
DEC 14 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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unknowing and involuntary in violation of Fourteenth Amendment due process;
and (2) he was denied effective assistance of counsel under the Sixth Amendment
when his attorney failed to object to the prosecutor’s motion to dismiss on due
process grounds. Cunio’s petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”).
1. A state prisoner’s federal habeas petition should be dismissed if the
petitioner has not exhausted available state remedies by “fairly presenting” his
federal claims in briefing before each appropriate state court. Coleman v.
Thompson, 501 U.S. 722, 731 (1991); Baldwin v. Reese, 541 U.S. 27, 29-31
(2004). In order fairly to present a claim, a petitioner must provide the state courts
with a fair opportunity to apply controlling legal principles to the facts relevant to
the constitutional claim by describing both the operative facts and the federal legal
theory on which the claim is based. Anderson v. Harless, 459 U.S. 4, 6 (1982). A
petitioner may not fundamentally alter the legal claim already considered by the
state courts. Beaty v. Stewart, 303 F.3d 975, 989-90 (9th Cir. 2002). Accordingly,
mere citation to the same constitutional protection in state and federal court is not
sufficient if the legal theory or factual allegations urged in its support are not
constant. See Picard v. Connor, 404 U.S. 270, 277 (1971).

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In state court, Cunio argued that his jury trial waiver was not knowing and
voluntary because his attorney misinformed him that he could not be sentenced to
consecutive sentences and because he did not understand the lengthy sentence that
could result from his waiver. It was not until his federal petition that Cunio
asserted that prosecutorial breach of a binding plea agreement, which Cunio says
required the prosecutor to seek conviction on all eight charges alleged in the
indictment, rendered his waiver involuntary because it deprived him of the benefit
of his bargain. Cunio has thus significantly changed the legal theory that links the
underlying facts to his federal due process claim. Cunio’s due process claim was
therefore not exhausted before the Oregon courts and is consequently procedurally
defaulted. See Or. Rev. Stat. §§ 138.510(3) (two year time limit for petitions),
138.550(3) (barring successive petitions).
2. Even assuming, arguendo, that Cunio fairly presented his ineffective
assistance claim to the Oregon state courts, Cunio’s claim that his attorney failed to
provide effective assistance when he did not object to the prosecutor’s alleged
breach of the stipulated facts agreement fails on the merits. See 28 U.S.C. §
2254(b)(2) (permitting a petition to be denied on the merits, notwithstanding
failure to exhaust state court remedies). In order to prevail on an ineffective
assistance of counsel claim, a petitioner must show that counsel’s representation

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fell below an objective standard of reasonableness and must demonstrate a
reasonable probability that, but for counsel’s errors, the result in the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687-94
(1984). Review of a Strickland claim in a federal habeas petition is “doubly
deferential,” because the court must apply deferential AEDPA review to the state
court’s decision, as well as the strong presumption in favor of the reasonableness
of counsel’s conduct. Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011);
Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
The Oregon post-conviction relief court concluded that Cunio did not
establish prejudice due to his trial counsel’s alleged deficiencies and that he was
not denied the right to effective assistance of counsel under the United States
Constitution. That court also found that the trial prosecutor’s motion to dismiss
did not change or violate the terms of Cunio’s stipulated facts agreement, a
determination that we must presume correct unless rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). In light of that finding, the Oregon
court’s conclusions were not contrary to, or an unreasonable application of, clearly
established federal law. 28 U.S.C. § 2254(d)(1). Accordingly, Cunio’s ineffective
assistance of counsel claim fails on the merits.
AFFIRMED.

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