Chokchai Krongkiet v. Jeffrey Beard

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHOKCHAI KRONGKIET,
Petitioner - Appellant,
v.
JEFFREY BEARD,
Respondent - Appellee.
No. 13-15477
D.C. No. 2:11-cv-02354-GEB-
CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Submitted March 10, 2015**
San Francisco, California
Before: BYBEE, CALLAHAN, and OWENS, Circuit Judges.
California state prisoner Chokchai Krongkiet appeals the denial of his 28
U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253. We
FILED
MAR 12 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 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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review de novo the district court’s decision to deny his habeas petition, see
Clabourne v. Ryan, 745 F.3d 362, 370 (9th Cir. 2014), and we affirm.
Krongkiet pleaded guilty to five counts of forcible lewd and lascivious
conduct with a child under the age of fourteen pursuant to a plea deal in which he
received a sentence of forty years imprisonment. Prior to sentencing, he asked his
appointed counsel to file a motion to withdraw his plea, but his counsel refused to
do so. On appeal, he argues that his counsel was constitutionally ineffective under
Strickland v. Washington, 466 U.S. 668 (1984), by: (1) depriving him of absolute
control over the decision whether to file a motion to withdraw his guilty plea; and
(2) arguing against his interests during the hearing on his request for substitute
counsel. We reject the first claimed error because the Supreme Court has not
clearly established that a defendant has absolute control over the decision to file a
motion to withdraw his guilty plea. See Knowles v. Mirzayance, 556 U.S. 111, 122
(2009) (“[I]t is not ‘an unreasonable application of clearly established Federal law’
for a state court to decline to apply a specific legal rule that has not been squarely
established by this Court.” (quoting 28 U.S.C. § 2254(d)(1)) (some internal
quotation marks omitted)). We reject the second claimed error because counsel did
not violate his duty of loyalty by following his obligation under state law to
explain his reasons for not filing the requested motion. See Nix v. Whiteside, 475
2

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U.S. 157, 168 (1986); People v. Horton, 11 Cal. 4th 1068, 1123 (1995) (“A
defendant’s expression of dissatisfaction with appointed counsel, necessitating a
Marsden hearing, does not compel counsel to concede the allegedly inadequate
representation but rather requires counsel to respond truthfully to those
allegations.”). But even assuming deficient performance, Krongkiet cannot show
prejudice because he has not demonstrated that there is a “reasonable probability”
that, but for his counsel’s errors, he would have gone to trial. See Premo v. Moore,
562 U.S. 115, 131-32 (2011).
In the alternative, Krongkiet argues that his due process rights were violated
by the trial court’s refusal to entertain his pro se motion to withdraw his guilty
plea. To the extent this claim is based on the argument that a defendant has
absolute control over the decision to file a motion to withdraw his guilty plea, it
again fails because the Supreme Court has not clearly established such a right. See
28 U.S.C. § 2254(d)(1). To the extent it is distinct—and assuming Krongkiet even
attempted to make a pro se motion—this claim fails because the trial court need not
entertain such a motion while Krongkiet remained represented by counsel. See
United States v. Bergman, 813 F.2d 1027, 1030 (9th Cir. 1987).
AFFIRMED.
3

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