Anthony Prentice v. Renee Baker; Nevada Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY PRENTICE,
Petitioner - Appellant,
v.
RENEE BAKER; NEVADA ATTORNEY
GENERAL,
Respondents - Appellees.
No. 14-16766
D.C. No. 3:10-cv-00743-RCJ-VPC
MEMORANDUM *
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted October 21, 2015
San Francisco, California
Before: SILVERMAN and CHRISTEN, Circuit Judges, and DUFFY,** District
Judge.
Anthony Prentice appeals the district court’s denial of his petition pursuant
to 28 U.S.C. § 2254. In his petition, Prentice argued that he was deprived of
FILED
DEC 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kevin Thomas Duffy, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.

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effective assistance of counsel because his counsel did not move to suppress his
statements to police pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). We
have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
We review de novo the district court’s denial of Prentice’s habeas petition.
See Dyer v. Hornbeck, 706 F.3d 1134, 1137 (9th Cir. 2013). Under the
Antiterrorism and Effective Death Penalty Act of 1996, we may not grant relief
unless Prentice shows that “the earlier state court’s decision ‘was contrary to’
federal law then clearly established in the holdings of [the Supreme] Court; or that
it ‘involved an unreasonable application of’ such law; or that it ‘was based on an
unreasonable determination of the facts’ in light of the record before the state
court.” Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28 U.S.C. §
2254(d)) (citation omitted).
Prentice has not shown that the state court unreasonably applied Strickland
v. Washington, 466 U.S. 668 (1984). In order to show ineffective assistance of
counsel, Prentice must show: (1) that his counsel’s representation fell below an
objective standard of professionally reasonable conduct; and (2) that a “reasonable
probability” exists that the deficient performance affected the outcome of his trial.
Id. at 687-89, 694. Even assuming that Prentice’s counsel performed deficiently (a
question we need not and do not reach), the state court’s conclusion that Prentice
2

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failed to show prejudice was not objectively unreasonable. See id. at 697. The
statements at issue were not highly damaging or greatly inconsistent with
Prentice’s trial defense, and the other evidence of Prentice’s guilt was strong,
especially Ashley Ratelle’s testimony that Prentice planned the murder and
provided weapons. Therefore, Prentice cannot show a reasonable probability that
the result of his trial would have been different had counsel successfully
suppressed Prentice’s statements. Nor was the state court’s decision based on an
unreasonable determination of the facts. See Wood v. Allen, 558 U.S. 290, 301
(2010). Accordingly, we affirm the district court’s denial of Prentice’s petition.1
We construe Prentice’s additional arguments as a motion to expand the
certificate of appealability. See 9th Cir. R. 22-1(e). So construed, the motion is
denied because Prentice has not made a “substantial showing of the denial of a
constitutional right.” Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (per
curiam) (quoting 28 U.S.C. § 2253(c)(2)).
AFFIRMED.
1 Because we deny Prentice’s claim on the merits, we do not reach the
question of whether his claim was exhausted, see 28 U.S.C. § 2254(b)(2), and
Prentice is not entitled to a remand to the district court for an evidentiary hearing,
see Cullen v. Pinholster, 563 U.S. 170, 203 n.20 (2011).
3

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