Manley v. Warden et al

Filing 99

ORDER - The second amended petition for writ of habeas corpus relief (ECF No. 62 ) is DENIED, and this action is therefore DISMISSED WITH PREJUDICE. Manley is DENIED a certificate of appealability, for the reasons set forth in this Order. The Clerk of Court shall enter final judgment accordingly and close this case. Signed by Judge Howard D. McKibben on 7/27/2021. (Copies have been distributed pursuant to the NEF - SC)

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 1 of 30

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GILES MANLEY,

Case No. 3:11-cv-00354-HDM-WGC
Petitioner,

v.

WARDEN;
DIRECTOR
OF
NEVADA
DEPARTMENT OF CORRECTIONS, et
al.,
Respondents.

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15

ORDER

This

is

a

counseled

petition

for

writ

of

habeas

corpus

16

pursuant to 28 U.S.C § 2254 filed by Nevada state prisoner Giles

17

Manley. (ECF No. 62). The second amended petition comes before the

18

court for consideration of the surviving claims.

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I. Background

20

On May 8, 2002, 22-year-old Isaac Perez, an elementary school

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custodian, was forced from the school where he was working into

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his own car by then 16-year-old Giles Manley. With Manley in the

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back seat, Perez drove. As he approached a traffic stop that was

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being conducted by Nevada Highway Patrol Trooper Guy Davis, Perez

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slowly drove his car into the stopped vehicle. Manley shot Perez

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in the head, neck and upper back five times, killing him, exited

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the left rear of the vehicle, fired a shot at Davis, hitting Davis

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in the foot, and fled.
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Nearby, Manley found a Chevy Tahoe that was occupied by

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Heriberto Casas, Casas’ wife and their infant child. Pointing the

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gun at Casas’ head, Manley ordered Casas to move over to the

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passenger seat. Casas pleaded with Manley not to shoot and, as he

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did so, was able to exit the car. Casas’ wife grabbed their child

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and exited the vehicle at the same time. Pointing the gun at Casas’

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wife and then back to Casas, Manley ordered Casas back into the

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car. Instead of complying, Casas gave Manley the keys to the car

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and he and his wife ran.

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Manley took off in the Chevy and was on the lam for several

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hours before he was located by law enforcement. Manley then led

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officers on a high-speed chase through the streets of Las Vegas,

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a chase that ended only after Manley entered the intersection of

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Vegas Drive and Decatur against a red light, going upwards of 75

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miles per hour, and crashed the Chevy into a car driven by Patrick

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Melia. (Exs. 2 & 3).1 Melia was pronounced dead at the scene, and

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Manley was taken into custody directly from the wreckage.

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The State charged Manley in a twelve-count indictment that

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included two counts of murder with use of a deadly weapon, one

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count of attempt murder with use of a deadly weapon, three counts

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of attempt first-degree kidnapping with use of a deadly weapon,

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one count of first-degree kidnapping with use of a deadly weapon,

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and several other related charges. (Ex. 5). The State also filed

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a notice of intent to seek death penalty. (Ex. 7).

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The exhibits cited in this order, comprising the relevant state
court record, are located at ECF Nos. 31-34, 41, 49, 56, 63 and
64. The court would note that although exhibits also appear at ECF
No. 35, the petitioner filed a notice of corrected image for the
exhibits therein. The corrected images are located at ECF No. 41.
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Manley’s appointed attorneys, Joseph Abood and Nancy Lemcke,

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had Manley evaluated for competency by Dr. John Paglini. Dr.

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Paglini deemed Manley competent to stand trial and assist in his

4

defense,

5

neuropsychological

6

suffered any soft tissue damage in the crash ending his crime spree

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and a complete psychological evaluation. (Ex. 99).

recommended

further

evaluation

to

evaluation
determine

–

specifically

whether

Manley

a

had

Abood and Lemcke then engaged Dr. Gregory Brown to determine

8
9

but

whether

Manley

suffered

from

mental

retardation

or

had

a

10

psychiatric diagnosis. (Ex. 100). Dr. Brown concluded that Manley

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had an IQ of 80 and explained that, because “Full Scale IQ of 70

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or lower is indicative of mental retardation,” Manley was “in the

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range of borderline intellectual functioning just above mental

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retardation but not into the mental retardation level.” (Id. at

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6). 2 Dr. Brown also found Manley was dependent on marijuana, was

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experiencing high stress levels, and had a GAF in the 70 to 80

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range but noted no other psychiatric diagnoses. (Id.)

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The defense filed a motion “to Preclude the State From Seeking

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the Death Penalty Against a Mentally Handicapped Juvenile.” (Ex.

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15).

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intellectual functioning, Manley had poor coordination, several

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disrupted school experiences, behavior problems, a history of

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depressed and withdrawn moods, and “almost certainly . . . Fetal

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Alcohol Syndrome” based on his mother’s admission that she used

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alcohol, marijuana, cocaine and LSD during her first trimester of

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pregnancy and numerous times after. (Id. at 3). 3

27
28

2
3

The

motion

asserted

that

in

addition

to

borderline

The court denied

Citation is to ECF page number at the top of the page.
Citation is to original page of document.
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the motion. (Exs. 17 & 18). Thereafter, Manley accepted an offer

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in which he agreed to plead guilty to all counts and accept the

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maximum sentence on each count in exchange for the death penalty

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being taken off the table. (Exs. 19 & 20).

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At the change of plea hearing, Abood set forth the terms of

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the parties’ agreement. (Ex. 20 (Tr. 2)). Before canvassing Manley,

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the court asked about the negotiations, stating in particular that

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it “want[ed] to be assured that Mr. Manley knows what he is doing,

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given his age, and how many times [counsel] talked to him, did his

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family talk to him.” (Ex. 20 (Tr. 2-3)). Abood explained what

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occurred after the motion to dismiss the death penalty was denied:

12

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[T]he question then became what would be the likelihood
of the State getting the death penalty in this case? It
was our reason and judgment that it was a very good
likelihood. So, obviously, faced with a situation like
that, Mr. Manley has determined that it would be in his
best interest to plead guilty pursuant to this guilty
plea agreement in order to avoid the death penalty.

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(Id. at 3). Abood stated that he and Lemcke discussed the case and

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the plea with Manley and his family many times, that they went

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over the plea agreement very carefully with Manley and explained

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to Manley his rights, that they both felt it was in Manley’s best

20

interest to plead, and that they believed Manley felt the same way

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and that he understood the nature of the plea agreement. (Id. at

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3-5).

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14

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The court then asked Manley his name and age, which Manley

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answered, and read each of the charges before asking if Manley

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understood them. Manley replied, “Yes.” (Id. at 6). Asked how he

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pled, Manley responded, “Guilty.” (Id.) Asked if his plea was free

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and voluntary, Manley stated, “Yeah.” (Id.) The court asked Manley

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if he had heard the negotiations as set forth by counsel and
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whether that was his understanding of the plea agreement, to which

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Manley responded, “Yeah.” (Id.) In response to further questions,

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Manley indicated he had gone over the agreement with counsel and

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his mom, and that he had read, understood and signed the agreement.

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(Id. at 6-7). The court read each charge in full and asked Manley

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if he committed that crime, and to each Manley responded yes. (Id.

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at 7-13). The court then accepted the plea as having been entered

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freely and voluntarily. (Id. at 13-14).

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Less than two months later, at his sentencing hearing, Manley

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told the court he was not ready to proceed because he wanted to

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withdraw his plea and go to trial. (Ex. 21 (Tr. 4)). Abood

12

represented to the court that Manley had made a similar statement

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to him and that, based on their discussions, Abood saw no basis

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for moving to withdraw the plea. (Id. at 5-6). On the grounds that

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the court saw nothing wrong with plea agreement and defense counsel

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did not believe a motion to withdraw was appropriate, the court

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denied the defendant’s oral motion and proceeded with sentencing.

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(Id. at 6 et seq.). Manley was sentenced, pursuant to the plea

19

agreement, to the statutory maximum term of incarceration on each

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count,

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possibility of parole on each of the murder counts. (Ex. 23).

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The

all

counts

next

day,

consecutive,
Manley’s

including

mother

life

submitted

without
a

motion

the
for

23

withdrawal of counsel on Manley’s behalf, asserting that defense

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counsel

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26
27
28

led the Defendant to believe that he would be able to
withdraw his Plea Agreement if and when the Supreme Court
passed the law that the death penalty cannot be sought
against a juvenile [but that o]nce the Plea Agreement
was signed Defendant was told that he would not be able
to withdraw his guilty plea.
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(Ex. 22). The court granted the motion to withdraw and appointed

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new counsel for purposes of appeal. (Ex. 24). At the hearing

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appointing new counsel, Manley again asked to withdraw plea. The

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court indicated the request had been denied and was a matter for

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appeal. (Id.)

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7

On direct appeal, the Nevada Supreme Court affirmed the denial
of Manley’s motion to withdraw plea. (Ex. 35).

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Manley then filed a state postconviction petition in which he

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argued that he pled guilty on the false promise that he would be

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allowed to withdraw his plea if the law were to change. (Exs. 37

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& 39). Without appointing counsel or conducting an evidentiary

12

hearing, the trial court denied relief. (Ex. 43). The Nevada

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Supreme Court reversed and remanded for both an evidentiary hearing

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and appointment of counsel. (Ex. 51).

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On remand, appointed counsel filed an amended petition and,

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after the evidentiary hearing, a second amended petition. (Exs. 53

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& 55). Before the evidentiary hearing began, the State believed

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that Abood would testify that he had advised Manley that he could

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withdraw his plea if the law were changed to bar the execution of

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minors. (Ex. 54 (Tr. 3-4)).

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When he took the stand, after he had reviewed his notes in

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his file, Abood testified, under oath, that he had made no such

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promise. According to Abood, he and Manley had discussed that the

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law might someday change to abolish the execution of juveniles.

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Abood testified that he told Manley that if this were to happen,

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Manley could ask that his plea be withdrawn. But he denied telling

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Manley the plea could definitely be withdrawn and said that in

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fact he told Manley there were no guarantees such a request would
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be granted. (Id. at 13, 15-16, 21-22). Abood did not recall

2

discussing the likelihood that a motion to withdraw plea would be

3

granted, however. (Id. at 25).

4

Abood further testified that based on the facts of the case

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and Manley’s juvenile history, he believed there was a substantial

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likelihood the death penalty would be imposed. (Id. at 9-10).

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Manley also understood he was a likely candidate for the death

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penalty. (Id. at 11-12). As such, Abood’s primary goal became

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saving Manley’s life. (Id. at 27-28). Abood explained that their

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11
12
13
14
15
16
17

intent in pleading
was to put [Manley] in the best position possible to at
least be able to raise the issue that he entered his
plea based on a fear of receiving the death penalty, and
if the death penalty were ever abolished in the future,
he would be in a position to do exactly what he’s doing
right now, and that is to request that his plea be
withdrawn based on a change in the law. And we made no
secret about that. We made it clear that we wanted him
to be at least in the position that he could be, at least
request that his plea be withdrawn.
(Id. at 13).

18

Lemcke also testified. She agreed that their intent was to

19

put Manley in the best position to obtain postconviction relief,

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whether he went to trial or plea, though she could not remember

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the specifics of what she or Abood said to Manley in their

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conversations. (Id. at 48-49). She also did not recall discussing

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the likelihood of success on a motion to withdraw the plea with

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Manley. (Id. at 51). The court then asked:

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26
27
28

There’s a lot of difference in telling a client, listen,
if the Supreme Court and Roper says that you’re not
allowed to execute juveniles, we tell you right now that
you can withdraw your plea to this case, as opposed to
saying, listen, if the Supreme Court comes down, then
you could request or ask but there’s no guarantees, you
could ask to withdraw your plea. There’s a little
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difference that the Court sees. Could you enlighten the
Court has [sic] to what happened here?

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(Id. at 59). Lemcke responded: “I cannot imagine that either myself

3

or Mr. Abood under any circumstance would say definitely you can

4

do this just based on – we guarantee you as your lawyers that you

5

will be able to withdraw your plea. That representation I cannot

6

imagine would ever have been made.” (Id. at 59-60). Lemcke also

7

testified that she went through the plea agreement carefully with

8

Manley and asked him to restate things in his own words so she

9

knew he understood it. (Id. at 50).

10

Finally, the DA assigned to Manley’s case, Christopher Lalli,

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testified. Lalli agreed that based on the circumstances of the

12

case, and Manley’s background which included committing sexual

13

offenses on his younger sisters as a juvenile, that he believed

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Manley was likely to be sentenced to death. (Id. at 64-65). But he

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testified that he was willing to not seek the death penalty in

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light of Manley’s dysfunctional childhood and youth and on the

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assurance that Manley would “never ever be released from custody.”

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(Id. at 66). Lalli acknowledged that he and Abood had conversations

19

about Manley seeking to withdraw his plea if the law were to

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change, but he stated he “absolutely did not” agree that Manley

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could withdraw his plea if the law changed and “would not have

22

agreed to anything like that.” (Id. at 67).

23

After the evidence was submitted, Manley’s postconviction

24

counsel told the court that Abood’s testimony “absolutely shocked”

25

him as it was totally contrary to what Abood said he was going to

26

say. (Id. at 71).
The court continued the hearing for further argument, during

27
28

which

counsel

for

the

State

again
8

affirmed

that

based

on

a

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conversation with Abood a couple weeks before the hearing, “it was

2

[his] understanding . . . that [Abood] would testify that he had

3

advised Mr. Manley that he could withdraw his plea if the law was

4

changed, that was my understanding, that was Mr. Goldstein’s

5

understanding.”

6

continued:

7

(Ex.

57

(Tr.

5)).

But,

the

State’s

attorney

I will say on Mr. Abood’s behalf that I know from talking
with him the morning of the hearing before we came in
court
that
he
reviewed
the
files
after
those
conversations with Mr. Goldstein and myself. Now,
whether his review of the file jogged his memory and
caused him to testify differently, or whether he changed
his testimony for some other reason, I don’t know but
Ms. Lemke [sic] and Mr. Lally’s [sic] testimony was
totally consistent with the testimony that Mr. Abood
gave at the hearing.

8
9
10
11
12
13

(Id.

at

5-6).

Postconviction

counsel

also

submitted

a

sworn

14

affidavit stating that Abood had “unequivocally stated that he did

15

in fact advise Manley that he would be able to withdraw his plea”

16

if the State of Nevada abolished the death penalty for juvenile

17

offenders. (Ex. 55 at 11-12). He further stated: “I felt there was

18

absolutely no ambiguity in Mr. Abood’s words and I was utterly

19

certain that Mr. Abood was telling me had had advised Mr. Manley

20

accordingly.” (Id. at 12).

21

The trial court found Abood credible that he did not promise

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Manley he could withdraw his plea and denied Manley’s petition.

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(Ex. 58). The Nevada Supreme Court affirmed. (Ex. 65).

24

Thereafter, Manley pursued another state court postconviction

25

petition, which was dismissed as procedurally barred. (Exs. 71 &

26

80). The Nevada Supreme Court affirmed. (Ex. 86).

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In May 2011, Manley initiated the instant federal habeas

28

action. Counsel was appointed, and in December 2011, had Manley
9

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evaluated by Dr. Antolin Llorente, a licensed psychologist and

2

clinical neuropsychologist. Like Dr. Brown earlier found, Dr.

3

Llorente

concluded

4

category

just

5

concluded, given his cognitive deficits, substance abuse, history

6

of mental illness, lack of family support, and likely organic brain

7

damage, Manley could not have understood the plea agreement or the

8

consequences of his plea. (Ex. 101 at 24-25).

that

above

Manley

mental

functioned

retardation.

in
But,

the
Dr.

borderline
Llorente

9

Dr. Llorente’s opinion was included in a third petition filed

10

with the state courts during the pendency of this action. (Ex.

11

88). The trial court dismissed that petition as procedurally

12

barred, and the Nevada Supreme Court affirmed. (Exs. 139 & 147).

13

The surviving claims of the second amended petition are now

14

before this court for either merits review or, in one case, for a

15

determination as to whether Manley’s procedural default can be

16

excused.

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II. Standard

18

A. Merits

19

28 U.S.C. § 2254(d) provides the legal standards for this

20

Court’s consideration of the merits of the petition in this case:

21

23

An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim
that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim –

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(1)

22

25
26
27
28

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
determination of the facts in light of
the evidence presented in the
State
court
proceeding.
10

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AEDPA “modified a federal habeas court’s role in reviewing

2

state prisoner applications in order to prevent federal habeas

3

‘retrials’ and to ensure that state-court convictions are given

4

effect to the extent possible under law.” Bell v. Cone, 535 U.S.

5

685, 693-694 (2002). This court’s ability to grant a writ is

6

limited to cases where “there is no possibility fairminded jurists

7

could disagree that the state court’s decision conflicts with

8

[Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86,

9

102 (2011). The Supreme Court has emphasized “that even a strong

10

case for relief does not mean the state court’s contrary conclusion

11

was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75

12

(2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)

13

(describing the AEDPA standard as “a difficult to meet and highly

14

deferential standard for evaluating state-court rulings, which

15

demands that state-court decisions be given the benefit of the

16

doubt”) (internal quotation marks and citations omitted.)

17

A state court decision is contrary to clearly established

18

Supreme Court precedent, within the meaning of 28 U.S.C. § 2254,

19

“if the state court applies a rule that contradicts the governing

20

law set forth in [the Supreme Court’s] cases” or “if the state

21

court

22

indistinguishable from a decision of [the Supreme Court] and

23

nevertheless arrives at a result different from [the Supreme

24

Court’s] precedent.” Andrade, 538 U.S. 63 (quoting Williams v.

25

Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at

26

694).

confronts

a

set

of

facts

that

are

materially

27

A state court decision is an unreasonable application of

28

clearly established Supreme Court precedent, within the meaning of
11

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1

28 U.S.C. § 2254(d), “if the state court identifies the correct

2

governing legal principle from [the Supreme Court’s] decisions but

3

unreasonably applies that principle to the facts of the prisoner’s

4

case.” Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413).

5

The “unreasonable application” clause requires the state court

6

decision to be more than incorrect or erroneous; the state court’s

7

application

8

unreasonable. Id. (quoting Williams, 529 U.S. at 409).

of

clearly

established

law

must

be

objectively

9

To the extent that the state court’s factual findings are

10

challenged, the “unreasonable determination of fact” clause of §

11

2254(d)(2) controls on federal habeas review. E.g., Lambert v.

12

Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires

13

that the federal courts “must be particularly deferential” to state

14

court factual determinations. Id. The governing standard is not

15

satisfied by a showing merely that the state court finding was

16

“clearly

17

substantially more deference:

18
19
20
21
22

erroneous.”

at

Id.

973.

Rather,

AEDPA

requires

.... [I]n concluding that a state-court finding is
unsupported by substantial evidence in the state-court
record, it is not enough that we would reverse in similar
circumstances if this were an appeal from a district
court decision. 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.

23

Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also

24

Lambert, 393 F.3d at 972.

25

Under 28 U.S.C. § 2254(e)(1), state court factual findings

26

are presumed to be correct unless rebutted by clear and convincing

27

evidence.

28

preponderance of the evidence that he is entitled to habeas relief.

The

petitioner

bears

12

the

burden

of

proving

by

a

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 13 of 30

1

Cullen, 563 U.S. at 181.

The state courts’ decisions on the merits

2

are entitled to deference under AEDPA and may not be disturbed

3

unless they were ones “with which no fairminded jurist could

4

agree.” Davis v. Ayala, - U.S. -, 135 S. Ct. 2187, 2208 (2015).

5

B. Procedural Default

6

A procedural default may be excused only if “a constitutional

7

violation has probably resulted in the conviction of one who is

8

actually innocent,” or if the prisoner demonstrates cause for the

9

default and prejudice resulting from it.

10

Murray v. Carrier, 477

U.S. 478, 496 (1986).

11

To demonstrate cause for a procedural default, the petitioner

12

must “show that some objective factor external to the defense

13

impeded” his efforts to comply with the state procedural rule.

14

Murray, 477 U.S. at 488.

15

impediment must have prevented the petitioner from raising the

16

claim.

For cause to exist, the external

See McCleskey v. Zant, 499 U.S. 467, 497 (1991).

17

With respect to the prejudice prong, the petitioner bears

18

“the burden of showing not merely that the errors [complained of]

19

constituted a possibility of prejudice, but that they worked to

20

his actual and substantial disadvantage, infecting his entire

21

[proceeding] with errors of constitutional dimension.”

22

Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v.

23

Frady, 456 U.S. 152, 170 (1982)).

24

III. Analysis

White v.

25

A. Ground 1(A)

26

In Ground 1(A), Manley asserts that his plea was not knowing,

27

intelligent and voluntary, in violation of his Fifth Amendment due

28

process rights. (ECF No. 62 at 10).
13

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 14 of 30

1

The federal constitutional guarantee of due process of law

2

requires that a guilty plea be knowing, intelligent and voluntary.

3

Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v.

4

Alabama, 395 U.S. 238, 242 (1969); United States v. Delgado–Ramos,

5

635 F.3d 1237, 1239 (9th Cir. 2011). “The voluntariness of [a

6

petitioner’s] guilty plea can be determined only by considering

7

all of the relevant circumstances surrounding it.” Brady, 397 U.S.

8

at 749. Those circumstances include “the subjective state of mind

9

of the defendant . . . .” Iaea v. Sunn, 800 F.2d 861, 866 (9th

10
11
12
13

Cir. 1986).
Addressing the “standard as to the voluntariness of guilty
pleas,” the Supreme Court has stated:

17

(A) plea of guilty entered by one fully aware of the
direct consequences, including the actual value of any
commitments made to him by the court, prosecutor, or his
own counsel, must stand unless induced by threats (or
promises
to
discontinue
improper
harassment),
misrepresentation
(including
unfulfilled
or
unfulfillable promises), or perhaps by promises that are
by
their
nature
improper
as
having
no
proper
relationship to the prosecutor’s business (e.g. bribes).

18

Brady, 397 U.S. at 755 (quoting Shelton v. United States, 246 F.2d

19

571, 572 n.2 (5th Cir. 1957) (en banc), rev’d on other grounds,

20

356 U.S. 26 (1958)); see also North Carolina v. Alford, 400 U.S.

21

25, 31 (1970) (noting that the “longstanding test for determining

22

the validity of a guilty plea is ‘whether the plea represents a

23

voluntary and intelligent choice among the alternative courses of

24

action open to the defendant.’”); Allen v. Quinn, 383 Fed. App’x

25

679, 680 (9th Cir. 2010) (“Under Supreme Court precedent, a plea

26

is voluntary so long as it is entered by one fully aware of the

27

direct

28

misrepresentation, or improper promises.”).

14
15
16

consequences,

and

not

14

induced

by

threats,

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 15 of 30

1

In Blackledge v. Allison, 431 U.S. 63 (1977), the Supreme

2

Court addressed the evidentiary weight of the record of a plea

3

proceeding when the plea is subsequently subject to a collateral

4

challenge. While noting that the defendant’s representations at

5

the time of his guilty plea are not “invariably insurmountable”

6

when challenging the voluntariness of his plea, the court stated

7

that, nonetheless, the defendant’s representations, as well as any

8

findings made by the judge accepting the plea, “constitute a

9

formidable barrier in any subsequent collateral proceedings” and

10

that

“[s]olemn

declarations

in

open

court

carry

a

strong

11

presumption of verity.” Blackledge, 431 U.S. at 74; see also Muth

12

v. Fondren, 676 F.3d 815, 821 (9th Cir. 2012); Little v. Crawford,

13

449 F.3d 1075, 1081 (9th Cir. 2006).

14

“A habeas petitioner bears the burden of establishing that

15

his guilty plea was not voluntary and knowing.” Little, 449 F.3d

16

at 1080.

17
18
19
20
21
22
23
24
25
26
27
28

On direct appeal, the Nevada Supreme Court found Manley’s
plea was knowing, voluntary and intelligent:
The record before this court belies Manley’s claim that
the district court failed to ensure his plea was entered
voluntarily and knowingly. . . . In the written plea
agreement, Manley acknowledged that he agreed to plead
guilty, understood the consequences of his plea,
understood the rights and privileges he waived by
pleading guilty, and that he voluntarily signed the
agreement after consulting with counsel. During the
district court’s plea canvass, Manley’s trial counsel,
Joseph Abood, discussed the sequence of events leading
to Manley’s decision to enter a plea agreement. Abood
stated that he and co-counsel spoke extensively with
Manley, shared his discovery with him, and answered his
questions. Abood also stated that he had thoroughly
reviewed the written plea agreement with Manley,
explaining to Manley his rights, the possible penalties,
and the specifics of each crime. Manley acknowledged
that he read and understood the plea agreement, he went
over the plea agreement with counsel, he understood the
15

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 16 of 30

1
2
3
4
5
6

charges against him, and that he freely and voluntarily
entered his guilty plea. Before accepting Manley’s plea,
the district court read each count on the amended
indictment and Manley acknowledged that each count was
correct. Based on the totality of the circumstances, we
conclude that Manley’s guilty plea agreement was entered
voluntarily, knowingly, and intelligently.
(Ex. 35 at 5).
Manley

argues

that

the

state

court’s

conclusion

was

7

objectively unreasonable. He asserts that his plea was not knowing,

8

voluntary

9

consequences of the plea, and he asserts he did not understand the

10

consequences because (1) the plea canvass was infirm in light of

11

his severe cognitive limitations, and (2) he pled based on an

12

improper, and false, promise.

13

and

intelligent

because

he

did

not

understand

the

i. Ground 1(A)(1)

14

Manley argues that the court did not ask enough questions to

15

confirm that he understood the agreement and the consequences of

16

his plea, especially given that he was a juvenile with severe

17

cognitive defects. (ECF No. 62 at 12). Specifically, he argues,

18

the court directed most of its questions to his attorney, rather

19

than to Manley himself, and the few questions directed to Manley

20

were insufficient to establish he truly understood the agreement.

21

(Id. at 12-14). He argues that Nevada Supreme Court did not

22

consider the impact of his cognitive limitations in reaching its

23

conclusion, and that its conclusion that his plea was knowing and

24

voluntary is therefore objectively unreasonable.

25

There is “no fixed colloquy, no set of sequence or number of

26

questions and answers, no minimum length of hearing, no Talismanic

27

language that the judge is required to use.” Stewart v. Peters,

28

958 F.2d 1379, 1384 (7th Cir. 1992); see also Zepeda v. Figueroa,
16

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 17 of 30

1

2014 WL 2605360, at *3 (S.D. Cal. June 11, 2014); Dietrich v.

2

Czerniak, 2007 WL 3046481, at *7 (D. Or. Oct. 7, 2007). The canvass

3

of Manley adopted Abood’s description of the plea and the reasons

4

why Manley was entering it, which occurred in Manley’s presence

5

and which Manley affirmed was correct. Abood also advised the court

6

that he and Lemcke had gone over the plea agreement very carefully

7

with Manley and that Abood believed Manley understood it and agreed

8

it was in his best interest. In response to questions of the court,

9

Manley affirmed that he understood the charges, had discussed the

10

agreement with counsel, and had read and understood the agreement.

11

Manley affirmed that he had committed each crime charged and that

12

his plea was free and voluntary.

13

The canvass itself must also be viewed in the context of the

14

plea agreement, which Manley signed. The agreement clearly set

15

forth the charges and the parties’ agreement as to the sentence.

16

It also stated that Manley was voluntarily entering his plea and

17

was not doing so on the basis of any promises of leniency by anyone

18

other than the promises set forth in the agreement. (Ex. 19 at 8).

19

The state courts were not objectively unreasonable in finding

20

the trial court’s canvass sufficient to establish that Manley was

21

aware of and understood the charges against him and the possible

22

penalties he faced, that he pled guilty to every charge in exchange

23

for the death penalty being abandoned by the State, and that he

24

was freely and voluntarily entering his plea.

25

This conclusion stands even in light of Manley’s status as a

26

juvenile with cognitive limitations. Two doctors evaluated Manley

27

before

28

understand the proceedings and able to function intellectually,

he

entered

his

plea.

Manley

17

was

found

competent

to

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 18 of 30

1

albeit in borderline territory, without significant psychiatric

2

diagnosis. Manley’s attorneys took extra care to discuss and

3

explain the charges and plea to him in light of his cognitive

4

limitations.

5

evaluation in 2011 to cast doubt on his ability to comprehend the

6

plea, an evaluation that took place nine years after the plea was

7

entered is insufficient to rebut the conclusions by two doctors

8

who evaluated Manley contemporaneously with his plea and whose

9

evaluations support a conclusion Manley was competent to enter a

10

plea. Finally, no evidence before either this court or the state

11

courts exists to show that Manley was under the influence of

12

medications that made it impossible for him to knowingly enter a

13

plea. Manley in fact averred in the plea agreement that he was not

14

under the influence of any such substances. (Ex. 19 at 8). In sum,

15

the canvass did not call into doubt the state courts’ conclusion

16

that

17

voluntarily and the totality of the circumstances sufficiently

18

supports the state courts’ conclusion in this regard.

Manley

While

entered

Manley

his

uses

plea

Dr.

Llorente’s

knowingly,

more

recent

intelligently

and

ii. Ground 1(A)(2)

19
20

Manley asserts that he pleaded guilty only because counsel

21

said he would be allowed to withdraw the plea if the law changed

22

to bar execution of juveniles, and thus because his plea was based

23

on this improper promise, it was not knowing and voluntary. (ECF

24

No. 62 at 14). The Nevada Supreme Court addressed this claim as

25

follows:

26
27
28

Manley contends on appeal that the district court’s
findings on this matter were erroneous. He asserts that
Deputy Public Defender Abood’s statements prior to and
during the evidentiary hearing regarding the advice he
gave Manley about the plea, and whether he could withdraw
18

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 19 of 30

1
2

it if the law ever changed, . . . were contradictory. He
maintains that the district court improperly denied his
request to withdraw the guilty plea. We disagree.

3

. . .

4

Here, Abood testified at the evidentiary hearing that he
sought to place Manley in “the best position possible”
to seek to withdraw his guilty plea if the law regarding
the execution of juvenile offenders changed and advised
Manley that “he could ask to withdraw his plea.” But
Abood also advised Manley that “there was obviously no
guarantees” that he could withdraw his plea. If there
had been such a guarantee, Abood continued, it would
have been a part of the plea negotiations.

5
6
7
8
9

Deputy Public Defender Lemcke testified that she had no
specific recollection of whether Manley was told that he
could withdraw his plea if the law changed, but she
generally corroborated Abood’s testimony. And Deputy
District Attorney Lalli testified that he “absolutely
did not and would not have agreed” to the guilty plea if
it was conditioned upon Manley being able to withdraw it
if the law changed.

10
11
12
13

Even if some of Abood’s statements and testimony on this
matter were inconsistent or unclear, the district court
found Abood to be a credible witness, and Abood testified
unequivocally that he made “no guarantees” to Manley
that he could withdraw his plea if the law regarding the
execution
of
juvenile
offenders
ever
changed.
Substantial evidence supports this finding, which
includes the testimony of Lemcke and Lalli. And the
district court’s finding on this matter is not clearly
wrong. We therefore defer to it.

14
15
16
17
18
19

(Ex. 65 at 2-3). 4

20

In short, the Nevada Supreme Court concluded Abood had not

21

promised Manley could withdraw his plea because Abood denied making

22

such a promise and the trial court found him credible. Manley

23

argues that this conclusion, and the trial court’s finding that

24

Abood was credible, were objectively unreasonable.

25

Manley argues that it is clear that he believed he had been

26

promised he could withdraw his plea if the law were to change. He

27

points to his statements at sentencing, his mother’s letter to the

28

4

Citation is to original page of document.
19

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 20 of 30

1

court, his motion to withdraw Abood as counsel, and Abood’s letter

2

to Manley that, Manley claims, reflects Manley’s understanding.

3

(Exs. 21, 22, 111 & 114). He argues that Abood was the only person

4

who testified that there was no promise and that such testimony

5

ran counter to the testimonies or experiences of everyone else.

6

Finally, he argues, Lemcke and Lalli’s testimonies did not support

7

Abood’s testimony, contrary to the finding of the state courts.

8

The state courts were not objectively unreasonable in finding

9

Abood’s testimony credible. The State’s attorney noted that Abood

10

had not reviewed his notes when he made his initial representation

11

and that Abood had reviewed his notes prior to his sworn testimony

12

in court. The letters written by Manley and his mother amount to

13

self-serving

14

Manley and his mother were asserting such a promise had been made

15

– not that their assertion was necessarily true. Further, contrary

16

to Manley’s assertion, Abood’s testimony was in fact supported by

17

that of Lemcke and Lalli. Not only did Lemcke not contradict Abood,

18

she also stated that they never would have promised Manley an

19

absolute right to withdraw. And while Lalli’s testimony directly

20

establishes only that Manley never asked the State to guarantee

21

his right to withdraw his plea, it is at least circumstantial

22

evidence suggesting that a guarantee was not part of Abood’s

23

discussions with Manley. Finally, while Manley challenges Abood’s

24

credibility by alleging that even the advice Abood claims to have

25

given was itself ineffective, as will be discussed infra, the

26

advice

27

objectively unreasonable in finding that Abood did not promise

was

evidence,

not

and

Abood’s

ineffective.

The

28
20

letter

state

reflects

courts

were

only

thus

that

not

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 21 of 30

1

Manley he would be able to withdraw his plea. Manley is not

2

therefore entitled to relief on Ground 1(A)(2) of the petition.

3

B. Ground Two

4

Ground Two asserts two claims of ineffective assistance of

5

counsel. First, Manley asserts that counsel failed to advise him

6

of the consequences of the plea. Second, he asserts that counsel

7

failed

8

impairments.

9

properly of the consequences of the plea and had sufficiently

10

investigated his mental impairments, it is reasonably likely he

11

would have rejected the plea and proceeded to trial or received a

12

better plea deal. (ECF No. 62 at 21-28).

to

sufficiently
Manley

investigate

asserts

that

if

the

extent

counsel

of

had

his

mental

advised

him

13

Ineffective assistance of counsel claims are governed by

14

Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland,

15

a petitioner must satisfy two prongs to obtain habeas relief—

16

deficient performance by counsel and prejudice. 466 U.S. at 687.

17

With respect to the performance prong, a petitioner must carry the

18

burden of demonstrating that his counsel’s performance was so

19

deficient

20

reasonableness.” Id. at 688. “‘Judicial scrutiny of counsel’s

21

performance must be highly deferential,’ and ‘a court must indulge

22

a strong presumption that counsel's conduct falls within the wide

23

range

24

Mirzayance,

25

assessing prejudice, the court “must ask if the defendant has met

26

the burden of showing that the decision reached would reasonably

27

likely have been different absent [counsel’s] errors.” Id. at 696.

of

that

it

reasonable
556

U.S.

fell

below

an

professional
111,

124

28
21

“objective

assistance.’”

(2009)

(citation

standard

of

Knowles

v.

omitted).

In

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 22 of 30

1

“We are particularly cautious about second-guessing counsel

2

when a plea is entered.” Hager v. Cate, 472 Fed. App’x 522, 523

3

(9th Cir. 2012) (citing Premo v. Moore, 562 U.S. 115, 131-32

4

(2011)).

5
6

i. Ground 2(A)
Manley

asserts

that

Abood

failed

to

advise

him

of

the

7

consequences of the plea because he incorrectly promised Manley

8

that he could withdraw his plea if the law changed. (ECF No. 62 at

9

22). As the court previously found, the state courts concluded

10

that Abood did not promise Manley that he could withdraw his plea,

11

and their conclusion was not objectively unreasonable.

12

Manley asserts that even if Abood merely told him he would be

13

in a good position to withdraw his plea if the law changed, that

14

advice was ineffective. Any lack of legal precedent to support

15

counsel’s advice is not dispositive in the context of this case.

16

There was a very real chance – in counsel’s estimation a likely

17

chance – that Manley would be sentenced to death if he went to

18

trial. There was no guarantee that the death penalty for juveniles

19

would be overturned. The only plea agreement the State would agree

20

to was one that put Manley in prison for the rest of his life.

21

With a high chance of death and no possibility of receiving a more

22

favorable plea, there was little Abood could have done to put

23

Manley in a better position than he did. Thus, his advice that, by

24

pleading guilty to the charges agreed to in the plea agreement,

25

Manley was placed in the “best” position, was within the wide range

26

of reasonable representation.

27
28

Manley has not demonstrated deficient performance and is not
therefore entitled to relief on Ground 2(A).
22

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 23 of 30

ii. Ground 2(B)

1
2

Manley asserts that Abood was also ineffective for failing to

3

adequately investigate the extent of his cognitive defects. (ECF

4

No.

5

investigated his psychological history and condition, he would not

6

have advised him to enter the plea.

62

at

26).

He

argues

that

if

counsel

had

adequately

7

Manley argues that despite Dr. Paglini’s recommendation that

8

he receive a full psychological evaluation, the only follow-up

9

evaluation he received was for intellectual functioning. Manley

10

asserts that had Abood done an adequate investigation, he would

11

have discovered that Manley had a history of depression, bipolar

12

disorder, PTSD, chronic drug abuse and physical abuse and neglect.

13

He would also have discovered, as Dr. Llorente concluded, that

14

Manley was unable to understand the consequences of pleading

15

guilty.

16

powerful mitigation evidence to persuade the State to take the

17

death penalty off the table or to convince the jury not to impose

18

the death penalty, and would have established that Manley could

19

not have knowingly and voluntarily entered a guilty plea. 5

This

information,

Respondents

20

argue

Manley

that

argues,

counsel

had

would

Manley

have

provided

evaluated

for

21

competency -- he was found competent -- and for any psychiatric

22

conditions, and none was found. They assert that Manley has not

23

established that any further evaluations would have led to a

24
25
26
27
28

Manley did not raise this claim until his third state petition,
which was dismissed as procedurally barred. Respondents have not
moved to dismiss the claim as procedurally defaulted, however, so
any procedural default defense is waived, and the court will
address the claim on the merits. See Vang v. Nevada, 329 F.3d 1069,
1073 (9th Cir. 2003).

5

23

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 24 of 30

1

different result – i.e., that he would have rejected the plea and

2

elected to proceed to trial.
When there is no “objective indication” that a defendant has

3
4

a

mental

illness

or

brain

damage,

we

cannot

label

counsel

5

“ineffective for failing to pursue this avenue of mitigation.”

6

Earp v. Cullen, 623 F.3d 1065, 1076 (9th Cir. 2010) (quoting

7

Gonzalez v. Knowles, 515 F.3d 1006, 1015 (9th Cir. 2008)). Counsel

8

had Manley evaluated for competency and then for psychiatric issues

9

and intellectual functioning. Manley was found competent, not

10

mentally retarded, and with no indication of psychiatric issues.

11

Following Dr. Brown’s evaluation, there did not remain an objective

12

indicator that further evaluation was necessary. Counsel’s failure

13

to further pursue evaluation did not fall outside the wide range

14

of reasonable representation.

15

Further, most of what Manley argues counsel should have

16

discovered through further evaluation was in fact presented to the

17

court in the motion to dismiss the death penalty charge for a

18

mentally

19

demonstrate prejudice.

individual.

Manley

cannot

therefore

Manley is not entitled to relief on Ground 2(B) of the

20
21

handicapped

petition.

22

C. Ground Four

23

In Ground Four, Manley asserts that he was denied his right

24

to conflict-free counsel because Abood could not effectively argue

25

for

26

ineffectiveness – i.e., that he made Manley a false and misleading

27

promise to induce Manley to enter the plea. (ECF No. 62 at 31-35).

28

This claim is procedurally defaulted, and the court previously

withdrawal

of

the

plea

without

24

admitting

to

his

own

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 25 of 30

1

reserved on the question of cause and prejudice, which it will now

2

address.

3

Manley asserts cause based on the Supreme Court case of

4

Martinez v. Ryan, 566 U.S. 1 (2012). Martinez created a narrow,

5

equitable rule that allows petitioners to, in some cases, establish

6

cause for a procedural default where the failure to raise a

7

substantial claim of ineffective assistance of trial counsel in

8

initial-review collateral proceedings is due to the absence or

9

ineffective assistance of post-conviction counsel. Id. at 16-17.

10

Manley

has

not

demonstrated

that

postconviction

counsel

11

rendered ineffective assistance and thus has not established cause

12

for the default of Ground Four.

13

“Experienced

advocates

since

time

beyond

memory

have

14

emphasized the importance of winnowing out weaker arguments on

15

appeal and focusing on one central issue if possible, or at most

16

on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983).

17

Postconviction counsel raised the essence of this claim –- that

18

counsel made an improper promise –- in the state habeas petition.

19

There was no greater chance of success on a claim that Abood

20

labored under a conflict of interest because of the improper

21

promise than on the claim that the plea was invalid because of the

22

promise; both depended on the court finding that Abood had made

23

such a promise. Counsel was not therefore deficient in failing to

24

raise this claim in postconviction proceedings. For the same

25

reason, Manley cannot demonstrate prejudice. Because the state

26

courts found Abood had made no such promise, there is no reasonable

27

likelihood the courts would have found that Abood operated under

28

a conflict of interest.
25

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 26 of 30

As Manley has not demonstrated cause and prejudice for the

1
2

default of this claim, Ground Four will be dismissed.

3

D. Ground Five

4

In Ground Five, Manley asserts that his Eighth Amendment right

5

to be free from cruel and unusual punishment is violated by his

6

sentence of life without the possibility of parole. (ECF No. 62 at

7

36).

8

In Graham v. Florida, the Supreme Court held that a sentence

9

of life without parole imposed on a juvenile for a nonhomicide

10

offense is cruel and unusual punishment in violation of the Eighth

11

Amendment. 560 U.S. 48, 82 (2010). Later, in Miller v. Alabama,

12

the Court held that “mandatory life without parole for those under

13

the age of 18 at the time of their crimes violates the Eighth

14

Amendment’s prohibition on ‘cruel and unusual punishments.’” 567

15

U.S.

16

reasoning implicates any life-without-parole sentence imposed on

17

a juvenile, even as its categorical bar relates only to nonhomicide

18

offenses.” Id. at 473.

19

a sentence of life without the possibility of parole on a juvenile,

20

a sentencing court must “how children are different, and how those

21

differences

22

lifetime in prison.” Id. at 480.

460,

465

(2012).

counsel

It

further

made

clear

that

“Graham’s

Miller further held that before imposing

against

irrevocably

sentencing

them

to

a

23

In Montgomery v. Louisiana, the Supreme Court held that Miller

24

was retroactively applicable on collateral review. 577 U.S. 190

25

(2016). It also held that “Miller did bar life without parole . .

26

. for all but the rarest of juvenile offenders, those whose crimes

27

reflect

28

Supreme Court recently made clear that sentencing courts are not

permanent

incorrigibility.”

26

Id.

at

209.

However,

the

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 27 of 30

1

required to make any specific finding of permanent incorrigibility

2

or any on-the-record explanation with an implicit finding of

3

permanent incorrigibility. Jones v. Mississippi, - U.S. -, 141 S.

4

Ct. 1307, 1314-15, 1319-21 (2021). Rather, it is enough that a

5

sentencing court has the discretion to consider “an offender’s

6

youth

7

sentence the offender to a term less than life without parole in

8

order to satisfy Miller. Id. at 1316-18.

and

attendant

characteristics”

and

the

discretion

to

9

Manley alleged in the state courts that his sentence violated

10

Miller. Manley argued that his life without parole sentence was

11

mandatory and that he never received an individualized sentencing

12

hearing at which the court considered his youth in determining his

13

sentence.

14

The Nevada Supreme Court held that there was no mandatory

15

sentencing scheme at the time Manley committed his crimes and thus

16

his sentence was not unconstitutional under Miller. (Ex. 153 at 1-

17

2). The court did not address Manley’s remaining arguments.

18

The state courts were not objectively unreasonable in finding

19

that Manley’s sentence did not violate the Eighth Amendment.

20

Neither the categorical bar of Graham nor the categorial of Miller

21

prohibits Manley’s sentence. Manley committed two murders and was

22

not sentenced pursuant to a sentencing scheme that mandated life

23

without

24

6

25
26
27
28

the

possibility

of

parole. 6

See

Nev.

Rev.

Stat.

§

Manley’s argument that his sentence was mandatory because it was
pursuant to a binding plea agreement, and because the Nevada
Supreme Court’s generally refuses to overturn sentences of life
without the possibility of parole, is not persuasive. A sentence
that is required pursuant to a mandatory sentencing scheme is
fundamentally different from a sentence that Manley agreed to and
which, although it would have possibly impacted the plea agreement,
the court could have deviated from if it had wished. There is no
27

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 28 of 30

1

200.030(4)(b). Moreover, Manley received a sentencing hearing at

2

which the court clearly considered his age in determining his

3

sentence. The court began by stating that Manley was lucky to get

4

the plea he did because “if the Court ever seen a crime that

5

warranted the death sentence, this would be such a crime.” (Ex. 21

6

(Tr. 18)). It then noted Manley’s abusive childhood and early drug

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abuse before stating that “as a juvenile” Manley had received six

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chances at Probation and had squandered them all. Because of that

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and the heinous nature of his crimes, the court explained, Manley

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was, at the age of 17, now facing the rest of his life behind bars.

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Taken as a whole, the court’s statements indicate consideration of

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the defendant’s youth prior to the court’s decision to not deviate

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from the parties’ agreed-upon sentence.

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As Manley’s sentence and the procedure used to arrive at it

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complies with all relevant Supreme Court precedent, the state

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courts’ rejection of this claim was neither contrary to, nor an

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unreasonable determination of, clearly established federal law.

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Manley is not entitled to relief on Ground 5 of the petition.

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IV. Certificate of Appealability

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In order to proceed with an appeal, Manley must receive a

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certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App.

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P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951

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(9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550,

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551-52 (9th Cir. 2001). Generally, a petitioner must make “a

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substantial showing of the denial of a constitutional right” to

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28

authority to support Manley’s assertion that appellate decisions
have any bearing on the question of whether a sentence is actually,
or in effect, mandatory.
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Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 29 of 30

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warrant a certificate of appealability. Allen, 435 F.3d at 951; 28

2

U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84

3

(2000). “The petitioner must demonstrate that reasonable jurists

4

would find the district court’s assessment of the constitutional

5

claims debatable or wrong.” Allen, 435 F.3d at 951 (quoting Slack,

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529 U.S. at 484). In order to meet this threshold inquiry, Manley

7

has the burden of demonstrating that the issues are debatable among

8

jurists

9

differently;

10

of

reason;
or

that

that
the

a

court

questions

could

resolve

the

are

adequate

to

issues
deserve

encouragement to proceed further. Id.

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The court has considered the issues raised by Manley, with

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respect to whether they satisfy the standard for issuance of a

13

certificate of appealability and determines that none meet that

14

standard. Accordingly, Manley will be denied a certificate of

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appealability.

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V. Conclusion

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In accordance with the foregoing, IT IS THEREFORE ORDERED

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that the second amended petition for writ of habeas corpus relief

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(ECF No. 62) is DENIED, and this action is therefore DISMISSED

20

WITH PREJUDICE.

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/

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/

23

/

24

/

25

/

26

/

27

/

28

/
29

Case 3:11-cv-00354-HDM-WGC Document 99 Filed 07/27/21 Page 30 of 30

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IT IS FURTHER ORDERED that Manley is DENIED a certificate of
appealability, for the reasons set forth above.
The Clerk of Court shall enter final judgment accordingly and
close this case.

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IT IS SO ORDERED.

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DATED: This 27th day of July, 2021.

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____________________________
UNITED STATES DISTRICT JUDGE

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