Del Eddy Colegrove v. Martin Hoshino, in his capacity as Acting Secretary of the California Department of…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEL EDDY COLEGROVE,
Petitioner - Appellant,
v.
MARTIN HOSHINO, in his capacity as
Acting Secretary of the California
Department of Corrections &
Rehabilitation; P. D. BRAZELTON, in his
capacity as Warden, Pleasant Valley State
Prison,
Respondents - Appellees.
No. 15-15206
D.C. No. 5:13-cv-00096-BLF
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Argued and Submitted February 11, 2016
San Francisco, California
Before: SCHROEDER and NGUYEN, Circuit Judges and ADELMAN,** District
Judge.
FILED
FEB 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.

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Del Eddy Colegrove, a California state prisoner, appeals the district court’s
denial of his petition for writ of habeas corpus. Colegrove was convicted of sexual
offenses after a jury trial and sentenced to 64 years.
He contends that his counsel did not understand his maximum exposure, and
that he was deprived of effective assistance of counsel during plea negotiations
when he rejected a plea offer of 15 years. He claims that had he known he faced
more than 48 years, he would have accepted the offer.
To establish that counsel was ineffective, a petitioner must show that
counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and that there is a reasonable probability the result
of the proceeding would have been different. Strickland v. Washington, 466 U.S.
668, 687–88 (1984). In considering the performance prong of the test, a reviewing
court “must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance . . . .” Id. at 689. Under the Anti-
Terrorism and Effective Death Penalty Act, “[t]he pivotal question is whether the
state court’s application of the Strickland standard was unreasonable.” Harrington
v. Richter, 562 U.S. 86, 101 (2011).
Counsel’s pretrial declaration in support of a continuance shows that she
believed that the possible sentence was approximately 70 years, which belies
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petitioner’s contention that counsel’s performance was deficient because she did
not understand the concept of stacking. Petitioner argues that his true maximum
exposure was 122 years, but we agree with the district court that it would not be
unreasonable to interpret counsel’s 70-year calculation as consistent with her
argument at sentencing that the imposition of consecutive sentences would be
illegal under Cunningham v. California, 549 U.S. 270 (2007).
AFFIRMED.
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