Michael Ray Ramborger v. SCOTT FRAUENHEIM, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL RAY RAMBORGER,
Petitioner-Appellant,
v.
SCOTT FRAUENHEIM, Warden,
Respondent-Appellee.
No. 16-16349
D.C. No. 2:15-cv-00120-KJN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kendall J. Newman, Magistrate Judge, Presiding
Submitted January 17, 2019**
San Francisco, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and ADELMAN,***
District Judge.
Michael Ramborger appeals from the district court’s denial of his 28 U.S.C.
§ 2254 habeas corpus petition challenging his conviction and sentence for various
* 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).
*** The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
FILED
JAN 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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drug-related crimes and possession of a handgun and ammunition by a felon. We
hold that the state court reasonably rejected Ramborger’s argument that his counsel
rendered ineffective assistance in connection with plea negotiations, and we
therefore affirm the district court’s denial of Ramborger’s petition.
We review federal habeas corpus petitions under the standard of review set
forth in the Antiterrorism and Effective Death Penalty Act. 28 U.S.C. § 2254.
Section 2254 “bars relitigation of any claim ‘adjudicated on the merits’ in state
court,” subject to two narrow exceptions. Harrington v. Richter, 562 U.S. 86, 98
(2011). The exceptions apply if a petitioner can show that the state court’s
previous adjudication of the claim either (1) was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or (2) was “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” Id. at 97-98 (quoting 28 U.S.C. § 2254(d)). A federal court may not
hear a habeas corpus petition unless the petitioner exhausted all available state
judicial remedies. Rose v. Lundy, 455 U.S. 509, 518 (1982).
Ineffective assistance of counsel claims are governed by the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984), which requires showing
that counsel’s deficient performance fell below an objective standard of
reasonableness, id. at 688, and that but for trial counsel’s unprofessional errors, a

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more favorable outcome would have been achieved, id. at 694-95. In a plea
bargain situation, “a defendant must show the outcome of the plea process would
have been different with competent advice.” Lafler v. Cooper, 566 U.S. 156, 163
(2012). Where a plea offer has lapsed or been rejected because of counsel’s
deficient performance, a petitioner must demonstrate a reasonable probability that
he would otherwise have accepted the earlier plea offer and that the plea would
have been entered without the prosecution canceling it or the trial court refusing to
accept it. Missouri v. Frye, 566 U.S. 134, 147 (2012).
The State contends that the ineffective assistance of counsel claim
Ramborger raises in this appeal is unexhausted. We need not decide whether
Ramborger exhausted this precise claim, however, because it fails on the merits
regardless. See 28 U.S.C. § 2254(b)(2). At best, Ramborger’s claim is based on
pure speculation that the prosecutor would have welcomed Ramborger’s
acceptance of the initial offer if Ramborger had communicated an acceptance
earlier. Ramborger presents no evidence in the record that would demonstrate a
reasonable probability that this would have occurred. And, at worst, Ramborger’s
claim is belied by the evidence that—unbeknownst to defense counsel—the plea
deal had already been withdrawn by the prosecutor at the time that Ramborger
blames defense counsel for not convincing him to accept the deal. As the district
court correctly held, prosecutors have the unilateral ability to withdraw a plea offer

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before a petitioner accepts, and Ramborger’s counsel “cannot be faulted for failing
to inform petitioner of an expiration date of which he was unaware.” Ramborger
has therefore failed to show that either prong of the Strickland test was met: he
neither demonstrated that counsel’s deficient performance was objectively
unreasonable, nor established that the outcome would actually have been different
if counsel had not made the alleged errors. Strickland, 466 U.S. at 688, 694.
AFFIRMED.

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