Mendoza v. LeGrand et al

Filing 61

ORDERED that Petitioner's writ of habeas corpus (ECF No. 26 ) is denied. It is further ordered that a certificate of appealability is denied. The Clerk of Court is directed to enter judgment accordingly and close this case. Signed by Chief Judge Miranda M. Du on 2/19/2021. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 1 of 16

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

***

6

ARMANDO C. MENDOZA,

Case No. 3:15-cv-00507-MMD-CLB
Petitioner,

7
v.
8

ORDER

ROBERT LEGRAND, et al.,

9

Respondents.

10
11

I.

SUMMARY

12

Petitioner Armando Mendoza filed a petition for writ of habeas corpus under 28

13

U.S.C. § 2254. (ECF No. 26 (“Petition”).) This matter is before the Court for adjudication

14

on the merits of the remaining grounds in the Petition. For the reasons discussed below,

15

the Court denies the Petition and denies Petitioner a certificate of appealability.

16

II.

BACKGROUND

17

Petitioner was charged in the state justice court with three counts of sexual assault

18

against a child under 14 years of age, four counts of lewdness with a child under 14 years

19

of age, and one count of battery with intent to commit sexual assault on a victim under 16

20

years of age. (ECF No. 27-1.) Prior to Petitioner’s arrest, detectives from the Washoe

21

County Sheriff’s Department interviewed Petitioner.1 (See ECF No. 27-30.) Petitioner

22

drove from California to speak to the detectives. (ECF No. 27-4 at 8.) A Spanish-speaking

23

detective translated for Petitioner and the interviewing detective.

24

During the interview, Petitioner was given warnings pursuant to Miranda v.

25

Arizona, 384 U.S. 436 (1966). (ECF No. 27-30 at 8.) The Spanish-speaking detective

26

read the Miranda warnings out loud in Spanish to Petitioner and provided the written

27

Miranda warnings in Spanish for Petitioner to read. (Id. at 8, 10.) Petitioner asked the

28
1Petitioner’s

interview was recorded and transcribed. The Nevada Court of
Appeals noted, however, that Petitioner did not attach a transcript of the interview to his
state habeas appeal. (See ECF No. 10-15 at 3.)

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 2 of 16

1

detectives, “[w]hen could I see this attorney?” (Id. at 10.) The interviewing detective

2

stated, “[y]ou have to request one. And if you do we can’t talk. And that’s fine if that’s what

3

you want to do, that’s what you need to do.” (Id.) The translating detective stated, “[i]f you

4

want an attorney and are asking for an attorney, we cannot talk.” (Id.) The interview

5

continued. (Id.)

6

Petitioner waived a preliminary hearing and agreed to plead guilty to two counts of

7

lewdness with a child under 14 years of age. (ECF No. 27-2.) In exchange, the State

8

agreed to drop the six remaining felony charges. (ECF Nos. 27-3, 27-5.) At Petitioner’s

9

arraignment, the state district court questioned Petitioner’s counsel because the state

10

district court was “anticipating a habeas.” (ECF No. 27-4 at 6.) The state district court and

11

counsel discussed Petitioner’s interview, in pertinent part, as follows:2

12
13
14
15
16
17
18
19
20

Counsel: . . . And I can advise the Court that the statements that he made
to the police in the interviews were entirely consistent with what he told me
when I met with him on the 27th of March.
The Court: All right. Did you investigate as to whether there is a reason to
seek to suppress the statements made?
Counsel: The facts going into [Petitioner’s] interview with the police were
that [Petitioner] drove from California voluntarily to come and speak with the
police. It was pretty clear in the conversation that [Petitioner] was there
willingly, voluntarily and he desired to talk to the police.
The Court: Did he incriminate himself in the statements?
Counsel: He did, your honor.

21

(Id. at 7-8.) Petitioner was arraigned. The state district court asked Petitioner if he

22

committed the acts alleged in each count and Petitioner affirmed that he did. (ECF No.

23

27-4 at 17.) The state district court sentenced Petitioner on each count to a maximum

24

term of life with the minimum parole possibility after ten years—all sentences to run

25

concurrently. (ECF No. 27-7.) A judgment of conviction was entered. (Id.) Petitioner did

26

not appeal.

27
28

2The

Court makes no credibility findings or other factual findings regarding the truth
or falsity of evidence or statements of fact in the state court. The Court summarizes
statements solely as background to the issues presented in the case, and it does not
summarize all such material. No statement of fact made in describing statements,
testimony, or other evidence in the state court constitutes a finding by the Court.
2

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 3 of 16

1

Petitioner then filed a state habeas petition, and the State filed a motion to dismiss

2

that petition. (ECF Nos. 10-2, 27-22.) The state district court granted the State’s motion

3

and dismissed that petition. (ECF No. 10-3 at 6-10.) The Nevada Court of Appeals

4

affirmed the dismissal. (ECF No. 10-15.) Petitioner dispatched his pro se federal habeas

5

corpus petition (ECF No. 6) to this Court on October 2, 2015. The Court appointed

6

counsel, who filed a first amended petition (ECF No. 9) on April 22, 2016. Petitioner

7

sought leave to file a second amended petition and the Court granted such request. (See

8

ECF No. 17.) Petitioner filed the second amended petition on January 31, 2017. (ECF

9

No. 26.) Respondents filed a motion to dismiss (ECF No. 36), and the Court granted

10

Respondents’ motion in part, dismissing Ground 1(D) and finding Ground 3 unexhausted.

11

(ECF No. 44.)
In the remaining grounds, Petitioner asserts the following instances of ineffective-

12
13

assistance-of-counsel in violation of Petitioner’s federal constitutional rights:

14

Ground 1(a):

Counsel represented Petitioner despite having a conflict of interest.

Ground 1(e):

Petitioner entered a guilty plea because of ineffective- assistanceof-counsel.

Ground 1(f):

17

Counsel advised Petitioner to waive a preliminary hearing.

Ground 1(c):

16

Counsel failed to file a motion to suppress Petitioner’s statements.

Ground 1(b):

15

Cumulative effect of instances of ineffective-assistance-of-counsel.

18
19
20

In Ground 2, Petitioner asserts that the trial court erred by preempting Petitioner’s right to

21

conflict-free counsel in violation of his rights to due process and effective-assistance-of

22

counsel. (ECF No. 26.)

23

III.

LEGAL STANDARD

24

A.

25

28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in

26

habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”):

27

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

28

Review under the Antiterrorism and Effective Death Penalty Act

3

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 4 of 16

1
2
3
4
5

to any claim that was adjudicated on the merits in State court proceedings
unless the adjudication 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

6

(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.

7

28 U.S.C. § 2254(d). A state court decision is contrary to clearly established Supreme

8

Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court applies a

9

rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the state

10

court confronts a set of facts that are materially indistinguishable from a decision of [the

11

Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (first quoting Williams v.

12

Taylor, 529 U.S. 362, 405-06 (2000), and then citing Bell v. Cone, 535 U.S. 685, 694

13

(2002)). A state court decision is an unreasonable application of clearly established

14

Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) “if the state court

15

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

16

unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 75. “The

17

‘unreasonable application’ clause requires the state court decision to be more than

18

incorrect or erroneous. The state court’s application of clearly established law must be

19

objectively unreasonable.” Id.

20

The Supreme Court has instructed that “[a] state court’s determination that a claim

21

lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

22

on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101

23

(2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “[E]ven a strong case

24

for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. at

25

102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181

26

(2011) (internal quotation marks and citations omitted) (describing the standard as a

27

“difficult to meet” and “highly deferential standard for evaluating state-court rulings, which

28

demands that state-court decisions be given the benefit of the doubt”).

4

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 5 of 16

1

B.

2

In Strickland, the Supreme Court propounded a two-prong test for analysis of

3

claims of ineffective assistance of counsel requiring Petitioner to demonstrate that: (1) the

4

attorney’s “representation fell below an objective standard of reasonableness[;]” and (2)

5

the attorney’s deficient performance prejudiced Petitioner such that “there is a reasonable

6

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

7

have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Courts

8

considering a claim of ineffective assistance of counsel must apply a “strong presumption

9

that counsel’s conduct falls within the wide range of reasonable professional assistance.”

10

Id. at 689. It is Petitioner’s burden to show “counsel made errors so serious that counsel

11

was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. at 687.

12

Moreover, to establish prejudice under Strickland, it is not enough for Petitioner “to

13

show that the errors had some conceivable effect on the outcome of the proceeding.” Id.

14

at 693. Rather, the errors must be “so serious as to deprive the [Petitioner] of a fair trial,

15

a trial whose result is reliable.” Id. at 687. When the ineffective-assistance-of-counsel

16

claim is based on a guilty plea challenge, the Strickland prejudice prong requires

17

Petitioner to demonstrate “there is a reasonable probability that, but for counsel’s errors,

18

[Petitioner] would not have pleaded guilty and would have insisted on going to trial.” Hill

19

v. Lockhart, 474 U.S. 52, 59 (1985).

20
21
22
23
24
25
26
27
28

Standard for evaluating an Ineffective-Assistance-of-Counsel claim

Under Hill, a challenge to the voluntariness of a plea may be based upon a claim
of ineffective assistance of counsel. As the Supreme Court observed:
For example, where the alleged error of counsel is a failure to investigate or
discover potentially exculpatory evidence, the determination whether the
error “prejudiced” [Petitioner] by causing him to plead guilty rather than go
to trial will depend on the likelihood that discovery of the evidence would
have led counsel to change his recommendation as to the plea. This
assessment, in turn, will depend in large part on a prediction whether the
evidence likely would have changed the outcome of a trial. Similarly, where
the alleged error of counsel is a failure to advise [Petitioner] of a potential
affirmative defense to the crime charged, the resolution of the “prejudice”
inquiry will depend largely on whether the affirmative defense likely would
have succeeded at trial. . . . As we explained in Strickland v. Washington,
supra, these predictions of the outcome at a possible trial, where necessary,

5

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 6 of 16
should be made objectively, without regard for the “idiosyncrasies of the
particular decisionmaker.”

1
2
3

Id. at 59-60 (citing Strickland, 466 U.S. at 695). Where a state district court previously

4

adjudicated the claim of ineffective assistance of counsel under Strickland, establishing

5

the decision was unreasonable is especially difficult. See Harrington, 562 U.S. at 104-05.

6

In Harrington, the Supreme Court clarified that Strickland and § 2254(d) are each highly

7

deferential, and when the two apply in tandem, review is doubly so. See id. at 105; see

8

also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal quotation marks

9

omitted) (“When a federal court reviews a state court’s Strickland determination under

10

AEDPA, both AEDPA and Strickland’s deferential standards apply; hence, the Supreme

11

Court’s description of the standard as doubly deferential.”). The Court further clarified,

12

“[w]hen § 2254(d) applies, the question is not whether counsel’s actions were reasonable.

13

The question is whether there is any reasonable argument that counsel satisfied

14

Strickland’s deferential standard.” Harrington, 562 U.S. at 105.

15

IV.

DISCUSSION

16

A. Ground 1(a)

17

Petitioner alleges that his counsel was rendered ineffective because counsel failed

18

to file a motion to suppress Petitioner’s videotaped interview with law enforcement. (ECF

19

No. 26 at 10.) Petitioner asserts that counsel should have filed a motion to suppress

20

Petitioner’s statements to law enforcement on the basis that Petitioner invoked his right

21

to counsel during the interview, and that the detectives tricked Petitioner into speaking

22

with them by assuring Petitioner that he would be free to return to his life. (Id. at 12.) The

23

Nevada Court of Appeals held:

24
25
26
27
28

Mendoza argues his counsel was ineffective for failing to file a motion to
suppress Mendoza’s confession. Mendoza asserts he is illiterate,
uneducated, does not understand English, and counsel should have sought
suppression of the confession on those bases. Mendoza fails to
demonstrate his counsel’s performance was deficient or resulting prejudice.
Prior to entry of Mendoza’s guilty plea, the district court inquired if there
were any reasons for counsel to move to suppress the confession. Counsel
responded that he had reviewed the interview, and Mendoza had voluntarily
traveled to talk with the officers and had clearly desired to talk with the
police. Given those circumstances, Mendoza does not demonstrate
6

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 7 of 16

1
2
3
4
5
6
7

counsel’s decision to decline to move to suppress the confession was
objectively unreasonable. See Casteel v. State, 122 Nev. 356, 362, 131
P.3d 1, 4 (2006); Mendoza v. State, 122 Nev. 267, 276, 130 P.3d 176, 181
(2006.)
Moreover, Mendoza did not include a transcript of his confession in
the appendix before this court. As Mendoza is the appellant, is it his burden
to provide this court with an adequate record for review, see McConnell v.
State, 125 Nev. 256 n.13, 212 P.3d 307, 316 n. 13 (2009), and thus, he fails
to demonstrate there was reasonable probability of a different outcome had
counsel moved to suppress the confession. Therefore, the district court did
not err in denying this claim without conducting an evidentiary hearing.

8

(ECF No. 10-15 at 3.) The Nevada Court of Appeals’ rejection of Petitioner’s claim was

9

neither contrary to nor an objectively unreasonable application of clearly established law

10

as determined by the United State Supreme Court.

11

“[T]he prosecution may not use statements, whether exculpatory or inculpatory,

12

stemming from custodial interrogation of the defendant unless it demonstrates the use of

13

procedural safeguards effective to secure the privilege against self-incrimination.”

14

Miranda v. Arizona, 384 U.S. 436, 444 (1966). Custodial interrogation “mean[s]

15

questioning initiated by law enforcement officers after a person has been taken into

16

custody or otherwise deprived of his freedom of action in any significant way.” Id. “[T]he

17

ultimate inquiry” of whether someone is in custody “is simply whether there is a formal

18

arrest or restraint on freedom of movement of the degree associated with a formal arrest.”

19

California v. Beheler, 463 U.S. 1121, 1125 (1983) (internal quotation marks omitted).

20

The United States Supreme Court reiterated the principle that the “assertion of the

21

right to counsel [is] a significant event and that once exercised by the accused, the

22

interrogation must cease until an attorney is present.” Edwards v. Arizona, 451 U.S. 477,

23

485 (1981). The Miranda-Edwards line of precedent, however, applies “only in the context

24

of custodial interrogation. If the defendant is not in custody then those decisions do not

25

apply.” Montejo v. Louisiana, 556 U.S. 778, 795 (2009); See also United States v. Hines,

26

963 F.2d 255, 256 (9th Cir. 1992).

27

The Nevada Court of Appeals reasonably determined that Petitioner failed to

28

demonstrate that his counsel was deficient for failing to file a motion to suppress

7

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 8 of 16

1

Petitioner’s statements to law enforcement. The transcript of Petitioner’s interview with

2

law enforcement was not presented to the Nevada Court of Appeals for review in

3

Petitioner’s state habeas appeal. The transcript, therefore, may not be considered in

4

reviewing the Nevada Court of Appeals’ adjudication of the claim under AEDPA.

5

Federal habeas review, instead, must be conducted based upon the record that was

6

presented to the Nevada Court of Appeals at the time of its adjudication of the claim on

7

the merits. See Cullen v. Pinholster, 563 U.S. 170, 180-87 (2011).

8

As noted by the Nevada Court of Appeals, at Petitioner’s arraignment, Petitioner’s

9

counsel represented to the state district court that counsel reviewed the transcript of the

10

interview and investigated whether there was a reason to seek to suppress Petitioner’s

11

statements to law enforcement. (ECF No. 27-4 at 7.) Counsel determined that Petitioner

12

willingly and voluntarily spoke to law enforcement based on Petitioner’s conversation with

13

the detectives and the fact that Petitioner drove himself from California to speak with the

14

detectives. (Id. at 7-8.) Counsel made the determination that Petitioner was not subject to

15

custodial interrogation based on counsel’s review of the transcript. Counsel’s decision not

16

to seek suppression of Petitioner’s statements to law enforcement does not fall “outside

17

the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

18

“[S]trategic choices made after thorough investigation of law and facts relevant to

19

plausible options are virtually unchallengeable.” Id.

20

In order to prevail on the ineffective-assistance-of-counsel claim, Petitioner must

21

show his counsel acted deficiently and “a reasonable probability that, but for counsel’s

22

[deficiencies], the result of the proceeding would have been different.” Strickland, 466

23

U.S. at 694. The Court, however, need not “address both components of the inquiry” if

24

Petitioner “makes an insufficient showing on one.” Id. at 697. Although the Nevada Court

25

of Appeals held Petitioner failed to demonstrate both deficiency and resulting prejudice,

26

Petitioner has not sufficiently demonstrated here his counsel’s “representation fell below

27

an objective standard of reasonableness.” Id. Therefore, the Strickland inquiry need not

28

continue, and Petitioner is denied federal habeas relief for Ground 1(a).

8

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 9 of 16

1

B. Ground 1(b)

2

In Ground 1(b), Petitioner alleges that he received ineffective-assistance-of-

3

counsel because counsel advised Petitioner to waive a preliminary hearing. (ECF No. 26

4

at 13.) Petitioner asserts that a preliminary hearing would have allowed him an

5

opportunity to test the State’s case, establish a defense, and establish the charges were

6

redundant. (Id.) In Petitioner’s state habeas appeal, the Nevada Court of Appeals held:

7
8
9
10
11
12

Mendoza argues his counsel was ineffective for permitting Mendoza to
waive the preliminary hearing. Mendoza fails to demonstrate his counsel’s
performance was deficient or resulting prejudice. Mendoza waived the
preliminary hearing as a result of the plea negotiations. Mendoza does not
identify what actions counsel should have performed differently regarding
the preliminary hearing proceedings or how pursuing a preliminary hearing
would have altered the outcome of the proceedings. Bare claims, such as
this one, are insufficient to demonstrate a petitioner is entitled to relief. See
Hargrove, 100 Nev. at 502-03, 686 P.2d at 225. Therefore, the district court
did not err in denying this claim without conducting an evidentiary hearing.

13

(ECF No. 10-15 at 3-4.) The Nevada Court of Appeals’ ruling was neither contrary to nor

14

an unreasonable application of Strickland.

15

As the Nevada Court of Appeals noted, Petitioner waived the preliminary hearing

16

as a result of plea negotiations. Defense counsel, in advising a defendant whether to take

17

a plea agreement, will balance the rights that a defendant forfeits with the benefits of any

18

agreement offered. Here, Petitioner was charged with eight felony counts carrying a

19

substantial amount of prison time. (ECF No. 27-1.) Petitioner’s counsel represented to

20

the state district court that during Petitioner’s interview with the detectives, Petitioner

21

incriminated himself and the statements Petitioner made to the detectives were consistent

22

with statements Petitioner made to his counsel. (ECF No. 27-4 at 6.)

23

Moreover, Petitioner acknowledged his conduct with his sister, the mother of the

24

victim. (ECF No. 27-6 at 6.) The State represented at sentencing that it could prove that

25

“multiple incidents had occurred” based on the evidence and Petitioner’s statements.

26

(ECF No. 27-6 at 11.) In light of the evidence against Petitioner and the State’s offer to

27

dismiss six charges against him, it was not unreasonable for Petitioner’s counsel to advise

28

Petitioner to forego his preliminary hearing. The reasonableness of such a decision is

9

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 10 of 16

1

underscored by Petitioner’s failure to present the Court with factual allegations or

2

exculpatory evidence to demonstrate how pursuing a preliminary hearing would have

3

altered Petitioner’s decision to accept his plea agreement. Accordingly, the Nevada Court

4

of Appeals reasonably determined that Petitioner failed to demonstrate that his counsel

5

was deficient or a reasonable probability that, but for counsel’s errors, Petitioner would

6

have pleaded not guilty and insisted on going to trial. Petitioner is therefore denied federal

7

habeas relief on Ground 1(b).

8

C. Ground 1(c)

9

In Ground 1(c), Petitioner alleges that his counsel was rendered ineffective due to

10

a conflict of interest. (ECF No. 26 at 14.) Petitioner asserts that he was berated by

11

counsel, counsel called Petitioner disparaging names, and that counsel stated that

12

counsel hated working on “these type of cases.” (Id. at 15.) In Petitioner’s state habeas

13

appeal, the Nevada Court of Appeals held:

14
15
16
17
18
19
20
21

Mendoza argues his counsel was ineffective because counsel called him
disparaging names and stated he hated working on these type of cases.
Mendoza fails to demonstrate prejudice for this claim. Mendoza received a
substantial bargain by entering a guilty plea. Mendoza was originally
charged with eight felonies and had made incriminating statements to the
police. The State agreed to reduce the charges to only two felonies in
exchange for Mendoza’s guilty plea. In addition, Mendoza stated in his
petition that he did not learn of the meaning of counsel’s statements until a
fellow prisoner translated them for him at a later date. Accordingly, Mendoza
fails to demonstrate these alleged statements had any bearing upon his
decision to plead guilty. Thus, Mendoza fails to demonstrate a reasonable
probability he would have refused to plead guilty and would have insisted
on going to trial had counsel not uttered those alleged statements.
Therefore, the district court did not err in denying this claim without
conducting an evidentiary hearing.

22
23

(ECF No. 10-15 at 4.) The Nevada Court of Appeals’ ruling was neither contrary to nor an

24

unreasonable application of clearly established law as determined by the Supreme Court

25

of the United States.

26

An error by counsel, even if professionally unreasonable, does not warrant setting

27

aside the judgment of a criminal proceeding if the error had no effect on the judgment.

28

See Strickland, 466 U.S. at 691. An exception to the Strickland prejudice requirement

10

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 11 of 16

1

exists, however, when “prejudice is presumed” in situations where counsel is actually or

2

constructively denied. Id. at 692. “[A] similar, though more limited, presumption of

3

prejudice” applies to an ineffectiveness claim predicated on counsel’s actual conflict of

4

interest. Id. (citing Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980)).

5

Although Petitioner alleges that counsel called Petitioner disparaging names and

6

stated that counsel hated working on “these type of cases,” Petitioner did not specifically

7

allege counsel’s statements should be considered an actual conflict of interest in

8

Petitioner’s state habeas case. Nonetheless, the Nevada Court of Appeals evaluated

9

Petitioner’s claim under the general test for ineffectiveness claims under Strickland, rather

10

than under Sullivan’s conflict rubric as argued by Petitioner in his reply. (ECF No. 56 at

11

19-24.) The United States Supreme Court has not addressed a claim alleging ineffective

12

assistance of counsel predicated on disparaging statements from counsel causing a

13

conflict of interest. Where the controlling law is uncertain, a state court may reasonably

14

choose one possible legal standard over another. See Knowles v. Mirzayance, 556 U.S.

15

111, 122 (2009) (internal quotations omitted) (“[I]t is not an unreasonable application of

16

clearly established Federal law for a state court to decline to apply a specific legal rule

17

that has not been squarely established by this Court.”).

18

The Nevada Court of Appeals reasonably determined that Petitioner failed to

19

demonstrate prejudice under Strickland. To obtain relief on this type of claim, “[P]etitioner

20

must convince the court that a decision to reject the plea bargain would have been rational

21

under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010). In exchange for

22

Petitioner’s guilty plea, the State agreed to drop six separate felony charges carrying

23

substantial prison sentences. (ECF No. 27-5.) If Petitioner rejected the plea agreement

24

and proceeded to trial, Petitioner would have faced six additional felony charges and

25

would not have gained the benefit of reduced exposure at sentencing.

26

Petitioner failed to demonstrate that, but for counsel’s alleged statements,

27

Petitioner would not have pled guilty and would have insisted on going to trial. Petitioner

28

stated that he did not understand counsel’s alleged statements until a fellow inmate

11

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 12 of 16

1

translated the statements to Petitioner in Spanish at a later date. Based on such

2

representation, the Nevada Court of Appeals determined that Petitioner failed to

3

demonstrate counsel’s alleged statements had any bearing on Petitioner’s decision to

4

plead guilty. The Nevada Court of Appeals reasonably found Petitioner failed to

5

demonstrate a reasonable probability that counsel’s alleged statements and conduct

6

would cause a rational defendant in Petitioner’s situation to plead not guilty and proceed

7

to trial. See Hill, 474 U.S. at 59-60. Petitioner is therefore denied federal habeas relief for

8

Ground 1(c).
D. Grounds 1(e) and 1(f)

9
10

In Ground 1(e), Petitioner alleges that he entered a guilty plea only due to the

11

ineffective assistance of his trial counsel. (ECF No. 26 at 17.) Petitioner asserts that the

12

ineffective assistance alleged in Grounds 1(a), 1(b), and 1(c) led him to enter a guilty plea

13

that was not knowing, voluntary, or intelligent. (Id.) In Ground 1(f), Petitioner alleges that

14

he was deprived of his right to effective assistance of counsel due to the cumulative effect

15

of counsel’s errors. (Id. at 18.) The Nevada Court of Appeals held:

16

Mendoza argues the cumulative effect of ineffective assistance of counsel
warrants vacating his judgment of conviction. Mendoza fails to demonstrate
any errors, even if considered cumulatively, amount to ineffective
assistance of counsel sufficient to warrant vacating the judgment of
conviction. Therefore, he fails to demonstrate that he was entitled to relief
for this claim.

17
18
19
20

(ECF No. 10-15 at 4-5.)

21

Petitioner has failed to meet his burden of proving the Nevada Court of Appeals’

22

ruling was either contrary to or an unreasonable application of clearly established law as

23

determined by the United States Supreme Court. In light of the Nevada Court of Appeals’

24

reasonable determination that Petitioner had not shown counsel rendered ineffective

25

assistance of counsel, it was reasonable in finding that there was no cumulative error.

26

Accordingly, the Court will deny habeas relief as to Grounds 1(e) and 1(f).

27

///

28

///

12

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 13 of 16

1

E. Ground 2

2

In Ground 2, Petitioner argues that the state district court erred in conducting a

3

colloquy with counsel at Petitioner’s arraignment. (ECF No. 26 at 18.) Petitioner asserts

4

the state district court “subverted the habeas process by asking a series of unchallenged

5

questions of trial counsel to prove at the arraignment that [Petitioner] received effective

6

representation.” (ECF No. 56 at 27.) Respondents argue that Ground 2 is procedurally

7

defaulted because Petitioner presented this claim in Petitioner’s state habeas appeal to

8

the Nevada Court of Appeals for the first time in his state postconviction action, and

9

because NRS § 34.810 is an independent and adequate bar to review. (ECF No. 52 at 9-

10

10.) Respondents also argue that Ground 2 is precluded from federal habeas relief under

11

Tollett v. Henderson, 411 U.S. 258 (1973).3 The Nevada Court of Appeals held:

12

Mendoza argues that trial court erred by questioning counsel at the
arraignment regarding counsel’s representation of Mendoza. This claim
was not based on an allegation that Mendoza’s guilty plea was involuntarily
or unknowingly entered or that his plea was entered without effective
assistance of counsel. Therefore, this claim was not permissible in a postconviction petition for writ of habeas corpus stemming from a guilty plea.
See NRS 34.810(1)(a). Accordingly, the district court did not err in denying
this claim.

13
14
15
16
17

(ECF No. 10-15 at 5.) NRS § 34.810(1)(a) states, in relevant part:
1.

18

(a) The petitioner’s conviction was upon a plea of guilty or guilty but
mentally ill and the petition is not based upon an allegation that
the plea was not involuntarily or unknowingly entered or that the
plea was entered without effective assistance of counsel.

19
20
21
22

The court shall dismiss a petition if the court determines that:

///

23
24
25
26
27
28

3The

contention that NRS § 34.810(1)(a) creates a state law procedural bar is
plausibly subject to the argument that NRS § 34.810(1)(a) merely codifies the substantive
ruling of Tollett in that, “[w]hen a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional rights that occurred prior
to the entry of the guilty plea.” 411 U.S. at 267. The parties, however, did not brief such
issue and the Court, therefore, proceeds on the contention that NRS § 34.810(1)(a)
constitutes a state law procedural bar. See United States v. Sineneng-Smith, 140 S. Ct.
1575, 1576 (2020) (holding that federal courts rely on the parties to frame the issues for
decision).
13

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 14 of 16

1

“Procedural default” refers to the situation where a petitioner in fact presented a

2

claim to the state courts but the courts disposed of the claim on procedural grounds,

3

instead of on the merits. A federal court will not review a claim for habeas corpus relief if

4

the decision of the state court regarding that claim rested on a state law ground that is

5

independent of the federal question and adequate to support the judgment. See Coleman

6

v. Thompson, 501 U.S. 722, 730-31 (1991). The state law ground may be a substantive

7

rule dispositive of the case, or a procedural barrier to adjudication of the claim on the

8

merits. See Walker v. Martin, 562 U.S. 307, 315 (2011) (citing Wainwright v. Sykes, 433

9

U.S. 72, 81-82 (1977)).

10

For a state procedural rule to be “independent,” the state law ground for decision

11

must not be “interwoven with the federal law.” Michigan v. Long, 463 U.S. 1032, 1040

12

(1983). A state law ground is so interwoven if “the state has made application of the

13

procedural bar depend on an antecedent ruling on federal law [such as] the determination

14

of whether federal constitutional error has been committed.” Ake v. Oklahoma, 470 U.S.

15

68, 75 (1985). To qualify as an “adequate” procedural ground, a state rule must be “firmly

16

established and regularly followed.” Beard v. Kindler, 558 U.S. 53, 60-61 (2009).

17

In Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003), the Ninth Circuit Court

18

of Appeals announced a burden-shifting test for analyzing adequacy. Under Bennett, the

19

state carries the initial burden of adequately pleading “the existence of an independent

20

and adequate state procedural ground as an affirmative defense.” Id. at 586. This burden

21

shifts to the petitioner “to place that defense in issue,” which the petitioner may do “by

22

asserting specific factual allegations that demonstrate the inadequacy of the state

23

procedure, including citation to authority demonstrating inconsistent application of the

24

rule.” Id. Assuming petitioner has met his or her burden, “the ultimate burden” of proving

25

the adequacy of the state bar rests with the state, which must demonstrate “that the state

26

procedural rule has been regularly and consistently applied in habeas actions.” Id.

27

Here, Respondents adequately plead that the Nevada Court of Appeals refused to

28

hear Ground 2 under NRS § 34.810(1)(a) and that NRS § 34.810 is an independent and

14

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 15 of 16

1

adequate bar to federal review. (ECF No. 52 at 9-10.) Petitioner, however, has not met

2

his burden of placing NRS § 34.810(1)(a) in issue as required by Bennett. The Court

3

therefore finds that the Nevada Court of Appeals’ reliance on that rule is adequate to bar

4

federal review.

5

To overcome a claim that was procedural defaulted in state court, a petitioner must

6

establish either (1) cause for the default and prejudice attributable thereto or (2) that

7

failure to consider the defaulted claims will result in a “fundamental miscarriage of

8

justice.” Harris v. Reed, 489 U.S. 255, 262 (1989). To prove a “fundamental miscarriage

9

of justice,” a petitioner must show that the constitutional error of which he or she

10

complains “has probably resulted in the conviction of one who is actually

11

innocent.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citing Murray v.

12

Carrier, 477 U.S. 478, 496 (1986)). “Actual innocence” is established when, in light of all

13

of the evidence, “it is more likely than not that no reasonable juror would have convicted

14

[the petitioner].” Id. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)).

15

“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Id. See also

16

Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008).

17

Petitioner alleges that counsel’s conflict of interest that prevented Petitioner from

18

raising the claim on direct appeal amounts to a fundamental miscarriage of justice. As the

19

Court held in its previous order granting in part and denying in part Respondents’ motion

20

to dismiss, Petitioner has not made a showing that Petitioner is actually innocent. (See

21

ECF No. 44 at 7.) Petitioner therefore has not demonstrated that the Court’s failure to

22

consider the procedurally defaulted claim will result in a fundamental miscarriage of

23

justice. Accordingly, the Court finds the claim raised in Ground 2 was procedurally

24

defaulted in state court, and Petitioner has failed to show a fundamental miscarriage of

25

justice or cause and prejudice to excuse the procedural default. As such, Ground 2 is

26

barred from review by the Court and is dismissed.

27

Under de novo review, the Court finds that Petitioner is precluded from federal

28

habeas relief as to Ground 2 under Tollett. “When a criminal defendant has solemnly

15

Case 3:15-cv-00507-MMD-CLB Document 61 Filed 02/19/21 Page 16 of 16

1

admitted in open court that he is in fact guilty of the offense with which he is charged, he

2

. . . may only attack the voluntary and intelligent character of the guilty plea by showing

3

that the advice he received from counsel was not within the [constitutional] standards

4

[established for effective assistance of counsel.]” Tollett, 411 U.S. at 267. Accordingly,

5

Ground 2 does not provide a basis for federal habeas relief.

6

V.

CERTIFICATE OF APPEALABILITY

7

This is a final order adverse to Petitioner. Rule 11 of the Rules Governing Section

8

2254 Cases requires the Court to issue or deny a certificate of appealability (“COA”). The

9

Court has therefore sua sponte evaluated the claims within the Petition for suitability for

10

the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-

11

65 (9th Cir. 2002). Pursuant to § 2253(c)(2), a COA may issue only when the petitioner

12

“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

13

2253(c)(2). With respect to claims rejected on the merits, a petitioner “must demonstrate

14

that reasonable jurists would find the district court’s assessment of the constitutional

15

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot

16

v. Estelle, 463 U.S. 880, 893, n.4 (1983)). Applying this standard, the Court finds a

17

certificate of appealability is unwarranted.

18

VI.

19
20

CONCLUSION
It is therefore ordered that Petitioner’s writ of habeas corpus (ECF No. 26) is

denied.

21

It is further ordered that a certificate of appealability is denied.

22

The Clerk of Court is directed to enter judgment accordingly and close this case.

23

DATED THIS 19th Day of February 2021.

24
25
26
27

MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

28

16