NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICARDO IRIVE, 

Petitioner-Appellant, 

 v. 

JO GENTRY, Warden; ATTORNEY 

GENERAL FOR THE STATE OF 

NEVADA, 

Respondents-Appellees.

No. 18-15925 

D.C. No. 

3:15-cv-00487-MMD-WGC 

MEMORANDUM*

RICARDO IRIVE, 

Petitioner-Appellant, 

 v. 

JO GENTRY, Warden; ATTORNEY 

GENERAL FOR THE STATE OF 

NEVADA, 

Respondents-Appellees.

No. 18-15927 

D.C. No. 

2:16-cv-00241-MMD-WGC 

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, District Judge, Presiding

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

JUN 14 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Submitted June 10, 2019**

San Francisco, California

Before: GOULD, IKUTA, and R. NELSON, Circuit Judges.

Nevada state prisoner Ricardo Irive appeals the district court’s denial of his 

28 U.S.C. § 2254 habeas corpus petitions challenging his sentence in two discrete 

robbery trials. Irive argues he received ineffective assistance when his trial 

counsel advised him to delay accepting a global plea offer until she could 

investigate the strength of the state’s case. He argues her mistaken representation

that the offer would remain available until trial resulted in his facing trial and 

sentencing in both cases and receiving a higher sentence than offered in the initial 

global plea deal. We affirm the district court’s denial of Irive’s petitions.

We review the state court’s adjudication of Irive’s claims under the 

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and can grant 

federal habeas relief only if Irive demonstrates the Nevada Supreme Court’s 

decision was “contrary to, or involved an unreasonable application of, clearly 

established federal law,” or “was based on an unreasonable determination of the 

facts.” 28 U.S.C § 2254(d). Under AEDPA, the question before us is “not 

whether counsel’s actions were reasonable,” but “whether there is any reasonable 

argument that counsel satisfied [the] deferential standard” set forth in Strickland v. 

 

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).
3 

Washington, 466 U.S. 668 (1984). Harrington v. Richter, 562 U.S. 86, 100 (2011).

The Nevada Supreme Court’s conclusion that Irive’s trial counsel did not 

render deficient performance under Strickland was neither “contrary to” nor “an 

unreasonable application of . . . clearly established federal law.” 28 U.S.C. § 

2254(d)(1). Counsel’s advice to Irive—to delay acceptance of the plea deal 

pending further investigation—was legally sound. Irive contends that it was 

unreasonable for counsel to fail to determine when the plea deal would expire, but 

counsel’s decision not to inquire on this point—in an effort to avoid the 

prosecution limiting the offer—was a reasonable strategic decision. Under the 

circumstances, it was reasonable for the Nevada Supreme Court to conclude that 

trial counsel’s conduct in plea bargaining met the Strickland standard. See Lafler 

v. Cooper, 566 U. S. 156, 163, 173-74 (2012).

Additionally, Irive has not shown that trial counsel’s allegedly deficient 

performance prejudiced his defense. Because Irive claims he was harmed by 

rejecting the plea deal, he must demonstrate that but for trial counsel’s mistaken 

representation there is a “reasonable probability” that the plea offer “would have 

been presented to the court (i.e., that the defendant would have accepted the plea 

and the prosecution would not have withdrawn it in light of intervening 

circumstances), that the court would have accepted its terms,” and that his sentence 

under the plea agreement “would have been less severe” than the sentence
4 

imposed. Lafler, 566 U.S. at 164. 

Irive has not offered any evidence that his decision to defer acceptance of 

the plea offer pending further investigation was contingent on the ultimately 

mistaken representation that the offer would remain open until trial. Even if he 

had, Irive failed to demonstrate to the Nevada courts that his codefendant would 

also have accepted the contingent offer. He likewise failed to provide any

evidence that the ambiguous offer would have been honored by the prosecution—

which, given the negotiating landscape, is questionable. Consequently, Irive has 

not met the prejudice requirements of Strickland and the Nevada Supreme Court’s 

finding that prejudice was not established is not unreasonable. 

AFFIRMED.