Diaz vs Filson et al

Filing 28

ORDER - The Petition (ECF No. 1 ) is DENIED. This action is therefore DISMISSED WITH PREJUDICE. Diaz is DENIED a Certificate of Appealability.Clerk shall enter final judgment accordingly and close this case. Signed by Judge Howard D. McKibben on 7/20/2020. (Copies have been distributed pursuant to the NEF - AB)

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Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 1 of 9 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 8 JESSIE MATTHEW DIAZ, Petitioner, 9 10 Case No. 3:17-cv-00570-HDM-CLB v. ORDER TIMOTHY FILSON, et al., 11 Respondents. 12 This is a pro se petition for writ of habeas corpus pursuant 13 to 28 U.S.C § 2254 filed by a Nevada state prisoner. The surviving 14 claim of petitioner Jessie Matthew Diaz’s (“Diaz”) petition is 15 before the court for consideration on the merits. (ECF No. 5). 16 Respondents have answered (ECF No. 18), and Diaz has filed a 17 document that the court construes as a reply. (ECF No. 25). 18 Background 19 Diaz challenges his state court conviction, pursuant to a 20 guilty plea, on three counts of burglary, for which he is serving 21 three consecutive terms of 38 to 96 months. Pursuant to the plea 22 agreement, Diaz pleaded guilty to the three counts, the State 23 dismissed the other eleven charges, and the parties would be free 24 to argue on sentence. (Exs. 4, 5, 7 (Tr. 4-10), 8 & 62 (Tr. 2825 29)). 1 26 27 1 28 The exhibits cited in this order, comprising the relevant state court record, are located at ECF Nos. 6-8. 1 Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 2 of 9 1 During his plea canvass, Diaz stated that the only medication 2 he had taken in the past 24 hours was his “depression pills” and 3 that it did not affect his ability to understand the court. (Ex. 4 7 at 4)). Diaz acknowledged that he had spoken with his attorney 5 about the plea agreement, had signed, read and understood the 6 agreement, understood the elements of the offense, and understood 7 the deal was “1 to 10 on each and [the parties were] free to argue 8 on each.” (Id. at 4-5, 8-9, 11). He understood that sentencing was 9 within the sole discretion of the court and that no one had 10 threatened or promised him anything to enter the plea. (Id. at 11 12). 12 When asked why he was pleading guilty, Diaz responded that he 13 just went down the wrong path. The court asked if he “walked into 14 a Jackson’s gas station with a bad card.” (Id.) Diaz responded, 15 “Yes. I was monkeying around with credit cards, you know.” (Id.) 16 The court asked if he walked into the store with the intent to 17 commit fraud, and Diaz answered “yes.” (Id. at 12-13). 18 Defense counsel represented there was no question in her mind 19 of Diaz’s competency to enter a plea, assist counsel, or understand 20 the nature of the proceedings. (Id. at 11). 21 At sentencing, Diaz stated: 22 25 Well, I’m truly remorseful for the things I’ve done and, like I said, I’ve changed my ways. And I’ve made some mistakes and I’m ready to do my time for it. And I’ve been talking to the Chaplain and I’m a Born Again Christian. I’ve learned from this and I’ve changed and I’m not going to do any more crimes or never get caught with another credit card again in my life. 26 (Ex. 13 (Tr. 6)). The court then sentenced Diaz to 38 to 96 months 27 on each count, each count consecutive to the others. (Id. at 7- 28 8). Judgment of conviction was entered on May 2, 2013. (Ex. 14). 23 24 2 Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 3 of 9 1 On June 10, 2013, Diaz, through counsel, filed a notice of 2 appeal. (Ex. 16). The appeal was dismissed as untimely. (Ex. 23). 3 On April 22, 2014, Diaz filed a state petition for 4 postconviction relief. (Ex. 28). Counsel was appointed and filed 5 a supplemental petition. (Exs. 36 & 43). The supplemental petition 6 asserted two claims: (1) ineffective assistance of counsel for 7 failing to perfect a timely appeal on Diaz’s behalf; and (2) 8 ineffective assistance of counsel for failing to investigate Diaz’ 9 mental health and intellectual issues, which resulted in the entry 10 of a plea that was not knowing, voluntary and intelligent. (Ex. 11 43). 12 conducted an evidentiary hearing on the claim that counsel failed 13 to perfect a timely appeal. The state court dismissed the latter claim as conclusory and 14 At the evidentiary hearing, the court noted, in relevant part, 15 that Diaz “clearly is struggling with some issues of psychiatric 16 nature, though not enough to raise an issue of competency.” (Ex. 17 62 (Tr. 51)). The court went on to state that at the change of 18 plea hearing, neither he nor Diaz’s attorney felt that Diaz was 19 unable to understand the nature of the proceedings. (Id. at 51- 20 52). 21 The trial court ultimately granted Diaz’s claim that counsel 22 was ineffective for failing to file a timely appeal and authorized 23 Diaz to file a direct appeal. (Ex. 63). 24 Nevada Court of Appeals affirmed Diaz’s judgment of conviction. 25 (Ex. 97). On appeal of the partial denial of Diaz’s postconviction 26 petition, the Nevada Court of Appeals affirmed. (Ex. 100). 27 On direct appeal, the Diaz thereafter filed the instant federal habeas petition. 28 3 Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 4 of 9 1 Standard 2 28 U.S.C. § 2254(d) provides the legal standards for this 3 Court’s consideration of the merits of the petition in this case: 4 6 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 – 7 (1) 5 8 9 10 11 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. 12 AEDPA “modified a federal habeas court’s role in reviewing 13 state prisoner applications in order to prevent federal habeas 14 ‘retrials’ and to ensure that state-court convictions are given 15 effect to the extent possible under law.” Bell v. Cone, 535 U.S. 16 685, 693-694 (2002). This court’s ability to grant a writ is 17 limited to cases where “there is no possibility fairminded jurists 18 could disagree that the state court’s decision conflicts with 19 [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 20 102 (2011). The Supreme Court has emphasized “that even a strong 21 case for relief does not mean the state court’s contrary conclusion 22 was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 23 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) 24 (describing the AEDPA standard as “a difficult to meet and highly 25 deferential standard for evaluating state-court rulings, which 26 demands that state-court decisions be given the benefit of the 27 doubt”) (internal quotation marks and citations omitted.) 28 4 Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 5 of 9 1 A state court decision is contrary to clearly established 2 Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, 3 “if the state court applies a rule that contradicts the governing 4 law set forth in [the Supreme Court’s] cases” or “if the state 5 court 6 indistinguishable from a decision of [the Supreme Court] and 7 nevertheless arrives at a result different from [the Supreme 8 Court’s] precedent.” Andrade, 538 U.S. 63 (quoting Williams v. 9 Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 10 confronts a set of facts that are materially 694). 11 A state court decision is an unreasonable application of 12 clearly established Supreme Court precedent, within the meaning of 13 28 U.S.C. § 2254(d), “if the state court identifies the correct 14 governing legal principle from [the Supreme Court’s] decisions but 15 unreasonably applies that principle to the facts of the prisoner’s 16 case.” Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). 17 The “unreasonable application” clause requires the state court 18 decision to be more than incorrect or erroneous; the state court’s 19 application 20 unreasonable. Id. (quoting Williams, 529 U.S. at 409). of clearly established law must be objectively 21 To the extent that the state court’s factual findings are 22 challenged, the “unreasonable determination of fact” clause of § 23 2254(d)(2) controls on federal habeas review. E.g., Lambert v. 24 Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires 25 that the federal courts “must be particularly deferential” to state 26 court factual determinations. Id. The governing standard is not 27 satisfied by a showing merely that the state court finding was 28 5 Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 6 of 9 1 “clearly 2 substantially more deference: 3 4 5 6 7 erroneous.” Id. at 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. 8 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also 9 Lambert, 393 F.3d at 972. 10 Under 28 U.S.C. § 2254(e)(1), state court factual findings 11 are presumed to be correct unless rebutted by clear and convincing 12 evidence. 13 preponderance of the evidence that he is entitled to habeas relief. 14 Cullen, 563 U.S. at 181. 15 are entitled to deference under AEDPA and may not be disturbed 16 unless they were ones “with which no fairminded jurist could 17 agree.” Davis v. Ayala, - U.S. -, 135 S. Ct. 2187, 2208 (2015). 18 Analysis 19 The petitioner bears the burden of proving by a The state courts’ decisions on the merits Ground One, the sole surviving claim of the petition, asserts 20 ineffective 21 asserts that counsel was ineffective for failing to obtain a mental 22 health evaluation to determine his state of mind at the time he 23 committed the offense and whether he was impaired or competent to 24 participate in formulating a defense. (ECF No. 1 at 3). 25 assistance of trial counsel. Specifically, In addressing Diaz’s claim, the Nevada Court of Appeals held: 26 27 28 Diaz Diaz did not identify any evidence counsel could have uncovered through reasonably diligent investigation into these issues. Accordingly, Diaz did not meet his burden to demonstrate his counsel acted in an objectively 6 Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 7 of 9 unreasonable manner or a reasonable probability he would have refused to plead guilty and insisted on proceeding to trial had counsel investigated Diaz’ background, education, and mental or emotional limitations. 1 2 3 Further, in the written plea agreement, Diaz asserted he understood all matters contained within that agreement, including the charges and possible sentences, and he asserted his counsel had carefully explained the plea agreement to him. Moreover, at the plea canvass, Diaz informed the district court he had discussed the plea agreement with his counsel, he understood the agreement, and he then entered a guilty plea pursuant to the agreement. 4 5 6 7 8 Under these circumstances, Diaz failed to demonstrate his counsel induced him to accept a guilty plea agreement he did not understand and Diaz did not demonstrate a reasonable probability he would have refused to plead guilty and would have insisted on proceeding to trial had counsel made further efforts to explain the guilty plea agreement. As Diaz’ claim was not supported by specific allegations that are not belied by the record and because his claim would not have entitled him to relief, the district court properly dismissed it without considering it at the evidentiary hearing. 9 10 11 12 13 14 (Ex. 100 at 2-3). 15 The state courts’ decision was not objectively unreasonable. 16 Ineffective assistance of counsel claims are governed by 17 Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, 18 a petitioner must satisfy two prongs to obtain habeas relief— 19 deficient performance by counsel and prejudice. 466 U.S. at 687. 20 With respect to the performance prong, a petitioner must carry the 21 burden of demonstrating that his counsel’s performance was so 22 deficient 23 reasonableness.” Id. at 688. “‘Judicial scrutiny of counsel’s 24 performance must be highly deferential,’ and ‘a court must indulge 25 a strong presumption that counsel's conduct falls within the wide 26 range 27 Mirzayance, 28 assessing prejudice, the court “must ask if the defendant has met of that it reasonable 556 U.S. fell below an professional 111, 124 “objective assistance.’” (2009) 7 (citation standard of Knowles v. omitted). In Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 8 of 9 1 the burden of showing that the decision reached would reasonably 2 likely have been different absent [counsel’s] errors.” Strickland, 3 466 U.S. at 696. 4 Diaz did not here or in state court present any evidence of 5 mental health issues that an evaluation would have uncovered, which 6 would have either rendered him incompetent or provided a defense 7 to the crimes with which he was charged. In fact, the record lacks 8 any indication that Diaz did not understand the plea he was 9 entering. Diaz repeatedly confirmed throughout the proceedings 10 that he understood the crimes he had committed, felt remorseful, 11 and did not intend to commit any more crimes. Further, Diaz has 12 not established that he would not have plead guilty if he had been 13 evaluated. Diaz received a substantial benefit from his decision 14 to eleven 15 dismissed. 16 performance nor prejudice, and the state courts’ rejection of this 17 claim was neither contrary to, or an unreasonable application of, 18 clearly established federal law, nor an unreasonable determination 19 of the facts. 20 21 plead: As of such, the Diaz fourteen against him established has charges were neither deficient Diaz is not entitled to relief on Ground One of the petition. Certificate of Appealability 22 In order to proceed with an appeal, Diaz must receive a 23 certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. 24 P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 25 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 26 551-52 (9th Cir. 2001). Generally, a petitioner must make “a 27 substantial showing of the denial of a constitutional right” to 28 warrant a certificate of appealability. Allen, 435 F.3d at 951; 28 8 Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 9 of 9 1 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 2 (2000). “The petitioner must demonstrate that reasonable jurists 3 would find the district court’s assessment of the constitutional 4 claims debatable or wrong.” Allen, 435 F.3d at 951 (quoting Slack, 5 529 U.S. at 484). In order to meet this threshold inquiry, Diaz 6 has the burden of demonstrating that the issues are debatable among 7 jurists 8 differently; 9 encouragement to proceed further. Id. of reason; or that that a the court questions could resolve the are adequate to issues deserve 10 The court has considered the issues raised by Diaz, with 11 respect to whether they satisfy the standard for issuance of a 12 certificate of appealability and determines that none meet that 13 standard. 14 appealability. 15 Conclusion Accordingly, Diaz will be denied a certificate of 16 In accordance with the foregoing, IT IS THEREFORE ORDERED 17 that the petition for writ of habeas corpus relief (ECF No. 1) is 18 DENIED. This action is therefore DISMISSED WITH PREJUDICE. 19 20 21 22 IT IS FURTHER ORDERED that Diaz is DENIED a certificate of appealability. The Clerk of Court shall enter final judgment accordingly and close this case. 23 IT IS SO ORDERED. 24 DATED: This 20th day of July, 2020. 25 26 27 ____________________________ UNITED STATES DISTRICT JUDGE 28 9

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