Skillful Davis v. BRIAN BELLEQUE, Superintendant, Oregon State Penitentiary

* 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NOT FOR PUBLICATION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
SKILLFUL DAVIS,
Petitioner - Appellant,
v.
BRIAN BELLEQUE, Superintendant,
Oregon State Penitentiary,
Respondent - Appellee.
No. 10-36035
D.C. No. 3:07-cv-00901-ST
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, District Judge, Presiding
Argued and Submitted November 14, 2011
Portland, Oregon
Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.
Skillful Davis appeals the district court’s denial of his petition for habeas
corpus. We affirm.
Davis’s petition alleges ineffective assistance of counsel (“IAC”) in
connection with his state court sentencing. As we held in Davis v. Grigas, 443
FILED
JAN 11 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
F.3d 1155, 1158 (9th Cir. 2006), we cannot grant habeas relief under 28 U.S.C.
§ 2254(d)(1) based on a claim of noncapital sentencing IAC because there is no
clearly established United States Supreme Court precedent applicable to that
situation. The Supreme Court has not established any such precedent since that
time.
Davis did not present a sufficient factual basis for an IAC claim, in any
event. The Oregon post-conviction court denied his petition for relief based on its
conclusion that his sentence was legal under state law. Based on that conclusion, it
does not appear that Davis could satisfy either prong of the two-prong test for IAC
in Strickland v. Washington, 466 U.S. 668, 687 (1984). As a result, he could not
establish that the state court’s conclusion to that effect was unreasonable. See
Harrington v. Richter, 131 S. Ct. 770, 788 (2011) (noting the double deference
owed to a state court determination of no ineffective assistance of counsel). The
request to expand the certificate of appealability is denied.
AFFIRMED.

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Davis v. Belleque No. 10-36035
PAEZ, Circuit Judge, concurring:
I concur in the disposition. I write separately only to express my agreement
with Judge Graber’s concurrence in Davis v. Grigas that Strickland v. Washington,
466 U.S. 668 (1984), applies to formal, noncapital sentencing proceedings
“involv[ing] findings or conclusions that provide a standard for the imposition of
sentence.” 443 F.3d 1155, 1159 (9th Cir. 2006) (Graber, J., concurring).
Nonetheless, Davis’s claim here fails because he cannot satisfy either prong of the
Strickland test.
In Strickland, the Supreme Court established the constitutionally-required
standard for effective assistance of counsel in capital sentencing cases. 466 U.S. at
687. The Court also explained that it “need not consider the role of counsel in an
ordinary sentencing, which may involve informal proceedings and standardless
discretion in the sentencer, and hence may require a different approach to the
definition of constitutionally effective assistance.” Id. at 686.
Subsequently, in Glover v. United States, the Supreme Court held that a
defendant suffered prejudice when his attorney’s alleged deficient performance
resulted in the imposition of a higher sentence for noncapital, federal offenses. 531
U.S. 198, 200 (2001). In so holding, the Court applied Strickland. Id. at 200 (“We
must decide whether this would be ‘prejudice’ under [Strickland].”).
FILED
JAN 11 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 Although Premo v. Moore, __ U.S. __, 131 S. Ct. 733, 737-38, 742
(2011), was decided after the state court denied Davis’s petition for post-
conviction relief, it offers further support for this conclusion.
2
Notwithstanding the Court’s statements in Glover, we held that the Supreme
Court has not extended Strickland to noncapital sentencing proceedings. Cooper-
Smith v. Palmateer, 397 F.3d 1236, 1244 (9th Cir. 2005); Davis, 443 F.3d at 1158.
In Davis, Judge Graber authored a compelling concurrence in which she concluded
that “the best way to read [Strickland and Glover] together is to say that Strickland
applies to a noncapital sentencing that is ‘formal’ and that involves findings or
conclusions that provide a standard for the imposition of sentence.” Davis, 443
F.3d at 1159 (Graber, J., concurring). I agree.1
As noted in our memorandum disposition, however, the state court correctly
interpreted the relevant state law and therefore imposed a lawful sentence. There is
simply no showing that Davis’s counsel performed deficiently or that he suffered
any prejudice. Thus, even if we were to apply Strickland, Davis would not be
entitled to habeas relief. Under these circumstances, I do not consider this to be a
worthy case for en banc review, which would be necessary to reconsider our
holding in Davis. Therefore, I concur in the court’s affirmance of the district
court’s denial of Davis’s habeas petition.

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