Enrique Banuelos v. GREG SMITH and ATTORNEY GENERAL FOR THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ENRIQUE BANUELOS,
Petitioner-Appellant,
v.
GREG SMITH and ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
No. 17-16489
D.C. No.
3:11-cv-00896-MMD-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted February 4, 2019
San Francisco, California
Before: PAEZ, BERZON, and R. NELSON, Circuit Judges.
Enrique Banuelos, a Nevada state prisoner, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition. We review de novo a district court’s
denial of a habeas petition, see Wentzell v. Neven, 674 F.3d 1124, 1126 (9th Cir.
2012), and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 25 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Banuelos contends that the state trial judge mistakenly believed that the
parties stipulated in the plea agreement to a twenty-to-life sentence. He argues that
he received ineffective assistance of counsel at sentencing because his attorney
failed to correct the state trial judge’s misunderstanding. In dismissing his petition,
the district court concluded that his ineffective assistance of counsel claim was
untimely and therefore procedurally defaulted, and, alternatively, unmeritorious.
To establish a claim of ineffective assistance of counsel, Banuelos must
demonstrate that counsel performed deficiently and that prejudice stemmed from
the deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
demonstrate Strickland’s deficient performance element, Banuelos must show that
counsel’s assistance was not “reasonable considering all the circumstances.” Id. at
688. To demonstrate prejudice, the petitioner “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
Assuming without deciding that Banuelos can overcome procedural default,
see Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002), we conclude that
Banuelos cannot demonstrate that he received ineffective assistance of counsel at
sentencing. The record demonstrates that counsel could have reasonably concluded
that the state trial judge correctly understood the terms of the plea agreement. The
judge was provided with a copy of the agreement, which did not contain a

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stipulation to a twenty-to-life sentence, and both parties accurately represented the
terms of the plea agreement at the plea colloquy and sentencing hearing.
Furthermore, when the judge did misunderstand the terms of the agreement, the
confusion centered only on the precise circumstances under which Banuelos could
withdraw his plea and Banuelos’s counsel promptly corrected the
misunderstanding. Finally, when the judge stated that he was accepting the
“parties’ negotiations,” his statement specifically noted that the defense had argued
for a 20-to-50 year sentence. Considering all of these circumstances, reasonable
counsel could have understood the reference to accepting the “parties’
negotiations” as a response to the submission of the Division of Parole and
Probation, which, the court had been told, was “different than what the plea
negotiations were.”
Banuelos therefore cannot establish ineffective assistance of counsel for
failing to correct a trial court misunderstanding. We affirm the district court’s
denial of his § 2254 petition on the merits.
We also decline Banuelos’s request to expand his certificate of appealability
to include two uncertified claims, because he has not made a “substantial showing
of [a] denial of a constitutional right” regarding those claims. 28 U.S.C. §
2253(c)(2).
AFFIRMED.

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