Kenneth Hibbler v. James Benedetti, et al

Filing

FILED OPINION (DOROTHY W. NELSON, JOHNNIE B. RAWLINSON and SANDRA S. IKUTA) AFFIRMED. Judge: SSI Authoring. FILED AND ENTERED JUDGMENT. [8315537]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH PATRICK HIBBLER,
Petitioner-Appellant,
v.
JAMES BENEDETTI; NEVADA
ATTORNEY GENERAL,
Respondents-Appellees.





No. 11-16683
D.C. No.
3:07-cv-00467RCJ-VPC
OPINION

Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted
June 12, 2012—San Francisco, California
Filed September 10, 2012
Before: Dorothy W. Nelson, Johnnie B. Rawlinson, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta

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COUNSEL
Ryan Norwood, Assistant Federal Public Defender, Las
Vegas, Nevada, for petitioner-appellant Kenneth Patrick Hibbler.
Jared M. Frost, Deputy Attorney General, Carson City,
Nevada, for respondents-appellees James Benedetti and
Nevada Attorney General.

OPINION
IKUTA, Circuit Judge:
Kenneth Hibbler claims that he was deprived of his Sixth
Amendment right to effective assistance of counsel because
his counsel induced him to enter a guilty plea at a time when
counsel should have known that Hibbler was incompetent.1
The Nevada Supreme Court rejected this claim, finding that
Hibbler’s allegations were belied by the record. This appeal
requires us to determine whether it was unreasonable for the
state court to make this finding absent an evidentiary hearing.
We hold that it was not.

1

Hibbler also alleges that his counsel was ineffective in various other
ways. We address these other ineffective assistance claims in a memorandum disposition filed concurrently with this opinion.

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I
In the early morning hours of July 24, 2003, Kenneth Hibbler’s eight-year-old daughter awoke in her father’s apartment
to find that her wrist had been slit. She asked her father for
help. He told her to go back to sleep and, feeling somewhat
groggy, she did.
Hibbler’s daughter awoke sometime later to a knock on the
door. It was Clark County Constable Coleman, there to evict
Hibbler from his apartment. Hibbler went to the door and
looked through the peephole. Rather than answering the door,
he returned to his daughter, told her to be quiet, and cut her
throat with a razor. He then took her to the bathroom, cut her
throat again, and then carried her to the bedroom, where he
attempted to cut her throat a third time, telling her it was for
her own good. This time she fled.
At this point, Constable Coleman let himself into the apartment, where he encountered father and daughter both covered
in blood. Coleman removed Hibbler’s daughter from the
apartment and secured medical care for her. In the meantime,
Hibbler barricaded himself in the bathroom. By the time Hibbler was eventually removed from the bathroom, he had slit
his own throat. Both Hibbler and his daughter survived the
incident, but their injuries required extensive surgery and Hibbler’s daughter was left with disfiguring scars on her neck.
Authorities arrested Hibbler and charged him with first
degree kidnapping with use of a deadly weapon, attempted
murder with use of a deadly weapon, and battery with use of
a deadly weapon resulting in substantial bodily harm. The
state appointed public defenders Jeffrey Rue and Amy Coffee
to represent Hibbler.
Early in the proceedings, Rue requested a psychiatric evaluation to determine whether Hibbler was competent to stand
trial and assist in his defense. Dr. Dodge Slagle, DO, per-

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formed the competency evaluation on August 18, 2003. Hibbler reported that he understood that he was facing serious
charges. He was able to accurately explain the role of the
judge, prosecutor, and defense counsel, and he understood the
use of plea bargains. Dr. Slagle concluded that Hibbler was
competent.
On May 5, 2005, after lengthy plea negotiations, Hibbler
pleaded guilty to one count of child abuse and neglect with
substantial bodily harm. In return, the state dropped the other
charges against Hibbler and stipulated to a 5 to 15-year sentence. The plea agreement stated that Hibbler was pleading
guilty because he wanted to avoid the possibility of being
convicted of additional, more serious, charges and spending
additional time in prison. It stated that Hibbler understood the
sentencing consequences of his plea, that he had not been
guaranteed any specific sentence, and that he was waiving
specified constitutional rights. It further stated that Hibbler
had discussed the charges and the plea agreement with his
attorneys, “believe[d] that pleading guilty and accepting this
plea bargain [was] in [his] best interest,” was entering his plea
voluntarily, and was not under the influence of any drug that
would “in any manner impair [his] ability to comprehend or
understand this agreement or the proceedings surrounding
[the] entry of this plea.”
Attached to the plea agreement was a certificate of counsel,
signed by Rue, averring that, “to the best of [Rue’s] knowledge and belief,” Hibbler was competent and understood the
charges against him and the consequences of pleading guilty,
was entering the plea voluntarily, and was not under the influence of any intoxicating drugs.
At the plea hearing, the state district court sought to ensure
that Hibbler understood the nature of the plea agreement and
the charges against him, and that Hibbler was making a knowing and voluntary plea. Hibbler assured the court that he
understood the plea negotiations and was in agreement with

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them. The court confirmed that Hibbler had received a copy
of the amended information and asked whether Hibbler had
any questions about the nature of the charges. Hibbler stated
that he had already asked his lawyers about the stipulated sentence and that he understood the charges. He then entered his
plea of guilty. The court explained that the offense Hibbler
was pleading to was a felony and that, pursuant to the stipulation, Hibbler would receive a 15-year sentence and would
“have to serve at least five years before [he was] even eligible
for parole.” Hibbler confirmed that he understood and that he
had read and understood the agreement before he signed it.
The court then asked if Hibbler had any further questions, to
which Hibbler replied: “Just the time served that I have
already served, will that be added to that?” The court assured
Hibbler that he was entitled to credit for time served, and Hibbler stated that he had no further questions.
Because Hibbler intended to plead guilty but maintain his
factual innocence pursuant to North Carolina v. Alford, 400
U.S. 25, 38 n.10 (1970), the court then asked the state to make
a proffer of the factual basis for the charges. The state
obliged. The court then turned back to Hibbler, seeking to
assure he understood the nature of an Alford plea. The court
explained that the purpose of the state’s proffer was to assure
the court that there was a factual basis for the plea, but that
Hibbler did not have to admit the truth of those allegations,
and asked Hibbler if he understood. Hibbler responded, “Not
really.” The court then gave a more detailed explanation, and
Hibbler confirmed that he understood.
Finally, the court asked Hibbler whether he had an opportunity to discuss the plea with his lawyers and whether he
believed the plea was in his best interest. Hibbler confirmed
that both were true, and that he was entering his plea “because
of the possible much greater sentence if [he] were convicted
at trial on the original charges.” Satisfied, the court accepted
Hibbler’s plea: “I will find that the Defendant’s plea of guilty
pursuant to the Alford decision is freely and voluntarily made.

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I will find that he understands the nature of the offense, the
consequences of his plea, and I will refer it for a pre sentence
report.”
When the matter came up for sentencing, Rue informed the
court that Hibbler had expressed a desire to withdraw his plea.
The court addressed Hibbler directly, asking if this was correct, and Hibbler confirmed, stating that he wanted to withdraw his plea because of “differences” between himself and
counsel and because on the day that he pled guilty he “really
was not at [his] full mental capacity.” According to Hibbler,
when he entered his plea, he was acting on the advice of his
attorneys, and “kept saying yes, yes, yes, whatever” but he
“had been up for two days” and was “on psychiatric drugs.”
The court granted a continuance.
On June 29, 2005, when the case came back before the
court, Hibbler, now represented by substitute counsel,
informed the court that he would not be moving to withdraw
his plea.2 Sentencing was continued once more, and on July
25, 2005, the court sentenced Hibbler to the stipulated term of
five to fifteen years.
On May 15, 2006, Hibbler filed a petition for a writ of
habeas corpus with the Clark County District Court, claiming,
among other things, that Rue and Coffee were constitutionally
ineffective for failing to assure that he was competent to enter
his plea and thereby allowing him to enter a plea that was not
knowing and voluntary. He alleged that, at the time he entered
his plea, he was “on very powerful anti-psychotic medications, and exhibited many signs that he was mentally unstable.” According to Hibbler, he was only able to get through
the plea colloquy because “counsel stood beside [him] at the
plea hearing, and directed him in everything that he should
2

Hibbler now claims that this lawyer was also ineffective, a claim we
address in the memorandum disposition filed concurrently with this opinion.

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say.” “Everytime a question was asked by the court, [he]
would look over at counsel, and counsel would direct [him]
to nod his head and say ‘yes.’ ” The state opposed Hibbler’s
petition, and Hibbler responded by requesting an evidentiary
hearing on this claim. On August 15, the Clark County court
denied the petition without holding an evidentiary hearing,
concluding that Hibbler’s allegations were “bare or belied by
the record and otherwise unworthy of belief.”
Hibbler appealed to the Nevada Supreme Court, which
affirmed in a reasoned decision. As to Hibbler’s ineffective
assistance claim, the court concluded that the evidence did not
support Hibbler’s assertion “that defense counsel . . . had reason to doubt appellant’s competency when he entered his
plea.” Hibbler had “appropriately responded to the district
court’s questions” during the plea hearing “and requested
clarification when he did not understand the proceedings.”
Moreover, Hibbler had “acknowledged in the written plea
agreement that he was not under the influence of any drug
which would impair his ability to understand the proceedings
surrounding his entry of plea.”
On May 21, 2009, Hibbler filed a habeas petition in the
federal district court asserting the same ineffective assistance
claim that he advanced in state court, which the district court
denied. He appeals that denial.
II
We review the district court’s denial of Hibbler’s federal
habeas petition de novo. Yee v. Duncan, 463 F.3d 893, 897
(9th Cir. 2006). Because the state court adjudicated Hibbler’s
ineffective assistance claim on the merits, we may not grant
habeas relief unless the state court’s resolution of the claim
“(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or
“(2) resulted in a decision that was based on an unreasonable

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determination of the facts in light of the evidence presented
in the State court proceeding.” Anti-Terrorism and Effective
Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d).
“ ‘We review the state court’s last reasoned decision.’ ” Towery v. Ryan, 673 F.3d 933, 944 (9th Cir. 2012) (quoting Crittenden v. Ayers, 624 F.3d 943, 950 (9th Cir. 2010)); see Ylst
v. Nunnemaker, 501 U.S. 797, 803-04 (1991). Here, the last
reasoned state-court decision is that of the Nevada Supreme
Court.
Hibbler’s primary argument is that the state court’s decision is not entitled to deference because it was based on an
unreasonable determination of the facts. See § 2254(d)(2).
Hibbler also claims that the state court’s rejection of his ineffective assistance claim was an unreasonable application of
clearly established law. See § 2254(d)(1). We address each
argument in turn.
A
Under § 2254(d)(2), a federal court is relieved of AEDPA
deference when a state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” To show such an error occurred, the
petitioner must establish that the state court’s decision rested
on a finding of fact that is “objectively unreasonable.” Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004) (quoting
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)); see also
Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (stating
that “a federal court may not second-guess a state court’s factfinding process unless, after review of the state-court record,
it determines that the state court was not merely wrong, but
actually unreasonable”).
Challenges under § 2254(d)(2) fall into two main categories. First, a petitioner may challenge the substance of the
state court’s findings and attempt to show that those findings

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were not supported by substantial evidence in the state court
record. Taylor, 366 F.3d at 999-1000. Second, a petitioner
may challenge the fact-finding process itself on the ground
that it was deficient in some material way. Id. at 999, 1001.
Regardless of the type of challenge, “[t]he question under
AEDPA is not whether a federal court believes the state
court’s determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.”
Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Thus, if a
petitioner challenges the substance of the state court’s findings, “it is not enough that we would reverse in similar circumstances if this were an appeal from a district court
decision.” Taylor, 366 F.3d at 1000. “Rather, we must be convinced that an appellate panel, applying the normal standards
of appellate review, could not reasonably conclude that the
finding is supported by the record.” Id. Similarly, when the
challenge is to the state court’s procedure, “mere doubt as to
the adequacy of the state court’s findings of fact is insufficient; ‘we must be satisfied that any appellate court to whom
the defect [in the state court’s fact-finding process] is pointed
out would be unreasonable in holding that the state court’s
fact-finding process was adequate.’ ” Lambert, 393 F.3d at
972 (alteration in original) (quoting Taylor, 366 F.3d at 999).
[1] In some limited circumstances, we have held that the
state court’s failure to hold an evidentiary hearing may render
its fact-finding process unreasonable under § 2254(d)(2). For
example, we have held that a state court’s resolution of a
“credibility contest” between a petitioner and law enforcement officers was an unreasonable determination of fact
where the evidence in the record was consistent with the petitioner’s allegations. Earp v. Ornoski, 431 F.3d 1158, 1169-70
& n.8 (9th Cir. 2005). But we have never held that a state
court must conduct an evidentiary hearing to resolve every
disputed factual question; such a per se rule would be counter
not only to the deference owed to state courts under AEDPA,
but to Supreme Court precedent. In Landrigan, for example,

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the Supreme Court held that a state court’s rejection of the
petitioner’s allegations was reasonable for purposes of
§ 2254(d)(2), even though the state court had not held an evidentiary hearing. 550 U.S. at 471, 476. A state court’s decision not to hold an evidentiary hearing does not render its
fact-finding process unreasonable so long as the state court
could have reasonably concluded that the evidence already
adduced was sufficient to resolve the factual question. See
Earp, 431 F.3d at 1170 (noting that a state court is not
required to hold an evidentiary hearing when it is possible to
resolve the factual question “based on ‘documentary testimony and evidence in the record’ ” (citation omitted)); Perez
v. Rosario, 459 F.3d 943, 950 (9th Cir. 2006) (holding that it
is reasonable for a state court to resolve a disputed factual
question without an evidentiary hearing when the petitioner’s
allegations are “incredible in light of the record, or . . . when
the record already before the court is said to establish a fact
conclusively”). The ultimate issue is whether the state’s factfinding procedures were reasonable; this is a fact-bound and
case-specific inquiry.
[2] Because AEDPA does not provide any specific guidance on what sort of procedural deficiencies will render a
state court’s fact-finding unreasonable, we have sometimes
turned for guidance to cases considering a similar issue in a
different context: when a federal district court considering a
habeas petition must or should conduct an evidentiary hearing. See Earp, 431 F.3d at 1166-67, 1169-70 (looking to
Townsend v. Sain, 372 U.S. 293, 313 (1963), which governs
when a federal district court reviewing a habeas petition de
novo must grant an evidentiary hearing, in determining
whether the state court decision was based on an unreasonable
determination of the facts). In this context, the Supreme Court
has recently clarified that, “[i]n deciding whether to grant an
evidentiary hearing, a federal court must consider whether
such a hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would entitle the

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applicant to federal habeas relief.” Landrigan, 550 U.S. at 474.3
More specifically, “[i]f the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district
court is not required to hold an evidentiary hearing.” Id.
“ ‘[A]n evidentiary hearing is not required on issues that can
be resolved by reference to the state court record.’ ” Id. (quoting Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998)).
[3] While this framework for determining when a district
court errs in failing to conduct an evidentiary hearing provides useful guidance, it is useful only by analogy and does
not answer conclusively whether the state court’s adjudication
“resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” § 2254(d)(2). We owe less deference to federal district courts than to state courts. See Lambert, 393 F.3d at 972 (“[T]he unreasonable determination
clause of § 2254(d)(2) teaches us that we must be particularly
deferential to our state court colleagues.”). Section 2254(d) is
a “ ‘guard against extreme malfunctions in the state criminal
justice systems,’ not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786
(2011) (quoting Jackson v. Virginia, 443 U.S. 307, 322 n.5
(1979) (Stevens, J., concurring in judgment)). Unlike our
review of a district court’s determination that an evidentiary
hearing is unnecessary, which is for abuse of discretion, see
Landrigan, 550 U.S. at 474-75, we may not “second-guess a
state court’s fact-finding process” unless we determine “that
the state court was not merely wrong, but actually unreasonable.” Taylor, 366 F.3d at 999. Nevertheless, the rules governing when a district court must grant an evidentiary hearing are
informative: if a district court would be within its discretion
in denying an evidentiary hearing, a state court’s similar decision is probably not objectively unreasonable.
3

We did not discuss Landrigan’s application to § 2254(d)(2) claims in
Earp, for the simple reason that Landrigan had not yet been decided.

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[4] Accordingly, in considering a petitioner’s argument
that the state court’s failure to hold an evidentiary hearing
rendered its factual findings unreasonable, we may first consider whether a similarly situated district court would have
been required to hold an evidentiary hearing. See Earp, 431
F.3d at 1167. We begin with the rule that no such hearing is
required “[i]f the record refutes the applicant’s factual allegations or otherwise precludes habeas relief.” Landrigan, 550
U.S. at 474; see also Perez, 459 F.3d at 950; see also Lambert, 393 F.3d at 965-66 (holding that an evidentiary hearing
is not a prerequisite to an adjudication on the merits triggering
AEDPA deference). The ultimate question, however, is
whether an appellate court would be unreasonable in holding
that an evidentiary hearing was not necessary in light of the
state court record. Taylor, 366 F.3d at 1000.
B
We now apply these principles to Hibbler’s challenge to the
state court’s fact-finding process under § 2254(d)(2). He
argues that the state court’s finding that counsel had no reason
to doubt that he was competent to make a plea was unreasonable because it was made without holding an evidentiary hearing. Hibbler claims that the state court had to hold such a
hearing to evaluate his allegation that his lawyers were aware
that he was suffering from psychological issues and taking
anti-psychotic medications at the time of his plea.
[5] We begin by considering whether an evidentiary hearing would have been required under the standard applicable
to district courts, mindful that no such hearing is required “[i]f
the record refutes the applicant’s factual allegations or otherwise precludes habeas relief.” Landrigan, 550 U.S. at 474.
Here, the evidence before the state court, taken as a whole,
clearly belied Hibbler’s allegations. Dr. Slagle’s competency
evaluation not only concluded that Hibbler was competent but
reflected that Hibbler understood the nature and seriousness
of the charges against him and the role of the court and the

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attorneys. Hibbler adduced no evidence that his mental status
had actually changed since that competency evaluation or that
his counsel had reason to believe it had changed. Nor does the
state court record contain any evidence that he had been taking “powerful anti-psychotic medications” at the time of his
plea. Rather, the medical records show that Hibbler was prescribed a number of drugs, but was not on any anti-psychotic
medication. Indeed, both Hibbler and his counsel signed
sworn statements on the day Hibbler entered his plea averring
that Hibbler was not under the influence of any drug that
would affect his ability to understand his actions.
Hibbler’s allegation that his lawyers directed his answers
during the plea colloquy (and therefore were aware that Hibbler was not competent to answer the questions on his own)
is similarly refuted by the record. The transcript of the
change-of-plea hearing shows that Hibbler gave detailed
answers when appropriate, sought clarification when he did
not understand something, and raised two sentencing issues
on his own.4
[6] Because Hibbler’s factual allegations are refuted by the
record, a district court hearing Hibbler’s petition de novo
could have reasonably determined that Hibbler was not entitled to an evidentiary hearing on his claim. Landrigan, 550
U.S. at 474. A state court could also have reasonably deter4
For example, on the two occasions when the court asked Hibbler
whether he had any specific questions, Hibbler spoke up and gave articulate answers. The first time, Hibbler told the court that the stipulated sentence had already been explained to him: “Well, I think the—I asked the
question about the sentence being five to 15. They explained that.” The
second time, Hibbler asked the court whether he would receive credit for
time served. When Hibbler did not understand what was happening, he
made that clear. Thus, when the judge asked Hibbler about the knowing
and voluntary nature of the plea, Hibbler asked the judge to speak up, noting that he was “hard of hearing.” Similarly, when the judge asked Hibbler
if he understood the nature of an Alford plea, Hibbler said “Not really,”
and sought further explanation before stating that he understood.

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mined that an evidentiary hearing would be fruitless. Accordingly, under the deferential standard of § 2254(d)(2), the state
court’s denial of Hibbler’s motion for an evidentiary hearing
was not objectively unreasonable. An appellate court could
reasonably conclude that the state court’s fact-finding process
was sufficient, Taylor, 366 F.3d at 1000, and we therefore
conclude that the state court did not make an unreasonable
determination of the facts in light of the evidence presented
in state court.
C
We next turn to Hibbler’s argument that the Nevada
Supreme Court’s rejection of his ineffective assistance of
counsel claim was an unreasonable application of Strickland
v. Washington, 466 U.S. 668 (1984).
In order to establish ineffective assistance under Strickland,
“a defendant must show both deficient performance and prejudice.” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009). In
assessing whether counsel’s performance was deficient,
courts must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance” and make every effort “to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Strickland,
466 U.S. at 689. A claim that counsel was deficient for failing
to move for a competency hearing will succeed only “when
‘there are sufficient indicia of incompetence to give objectively reasonable counsel reason to doubt defendant’s competency, and there is a reasonable probability that the defendant
would have been found incompetent to stand trial had the
issue been raised and fully considered.’ ” Stanley v. Cullen,
633 F.3d 852, 862 (9th Cir. 2011) (quoting Jermyn v. Horn,
266 F.3d 257, 283 (3d Cir. 2001)).
In the context of a collateral attack on a guilty plea, Strickland’s prejudice prong requires that the petitioner show that

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“there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 5859 (1985).
Under AEDPA, we review the state court’s application of
Strickland for reasonableness. As explained by the Supreme
Court, “[t]he question ‘is not whether a federal court believes
the state court’s determination’ under the Strickland standard
‘was incorrect but whether that determination was
unreasonable—a substantially higher threshold.’ ” Mirzayance, 556 U.S. at 123 (quoting Landrigan, 550 U.S. at 473).
Put differently, we ask not “whether counsel’s actions were
reasonable” but “whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Richter, 131 S. Ct. at 788. Accordingly, a “doubly deferential judicial review” applies to Strickland claims rejected by the state
court. Mirzayance, 556 U.S. at 123.
[7] Hibbler argues that he received ineffective assistance
of counsel because his attorneys failed to ensure he was competent before he pleaded guilty and that he was prejudiced by
this failure because his incompetence resulted in a plea that
was not knowing and voluntary.5 As we have explained, the
state court reasonably concluded that Hibbler’s lawyers had
no reason to doubt that he was competent at the time he
pleaded guilty. Thus, even on de novo review, Hibbler could
not establish that his counsel’s performance was deficient. See
5

Whether a defendant is competent to plead guilty and whether that
defendant has actually entered a knowing and voluntary plea are different
inquiries. See Godinez v. Moran, 509 U.S. 389, 400 (1993). The former
addresses whether the defendant “has the ability to understand the proceedings,” while the latter addresses “whether the defendant actually does
understand the significance and consequences of a particular decision and
whether the decision is uncoerced.” Id. at 401 n.12. Competence is a prerequisite to a knowing and voluntary plea, however; a defendant who
lacked the ability to understand the proceedings would also not be able to
understand the consequences of decisions made during the proceedings.

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Stanley, 633 F.3d at 862. Accordingly, the Nevada Supreme
Court’s rejection of Hibbler’s claim was not an unreasonable
application of Strickland. See Berghuis v. Thompkins, 130 S.
Ct. 2250, 2264-65 (2010).
III
[8] The ineffective assistance of counsel claim Hibbler
raises in this appeal was also raised in his state habeas petition, and the Nevada Supreme Court rejected it on the merits.
Because we conclude that the state court’s rejection of this
claim withstands scrutiny under § 2254(d), a writ of habeas
corpus “shall not be granted.” § 2254(d).
AFFIRMED.