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)

Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 1 of 9

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JESSIE MATTHEW DIAZ,
Petitioner,

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Case No. 3:17-cv-00570-HDM-CLB

v.

ORDER

TIMOTHY FILSON, et al.,

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Respondents.

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This is a pro se petition for writ of habeas corpus pursuant
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to 28 U.S.C § 2254 filed by a Nevada state prisoner. The surviving
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claim of petitioner Jessie Matthew Diaz’s (“Diaz”) petition is
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before the court for consideration on the merits. (ECF No. 5).
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Respondents have answered (ECF No. 18), and Diaz has filed a
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document that the court construes as a reply. (ECF No. 25).
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Background
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Diaz challenges his state court conviction, pursuant to a
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guilty plea, on three counts of burglary, for which he is serving
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three consecutive terms of 38 to 96 months. Pursuant to the plea
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agreement, Diaz pleaded guilty to the three counts, the State
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dismissed the other eleven charges, and the parties would be free
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to argue on sentence. (Exs. 4, 5, 7 (Tr. 4-10), 8 & 62 (Tr. 2825
29)). 1
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The exhibits cited in this order, comprising the relevant state
court record, are located at ECF Nos. 6-8.
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Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 2 of 9

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During his plea canvass, Diaz stated that the only medication

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he had taken in the past 24 hours was his “depression pills” and

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that it did not affect his ability to understand the court. (Ex.

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7 at 4)). Diaz acknowledged that he had spoken with his attorney

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about the plea agreement, had signed, read and understood the

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agreement, understood the elements of the offense, and understood

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the deal was “1 to 10 on each and [the parties were] free to argue

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on each.” (Id. at 4-5, 8-9, 11). He understood that sentencing was

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within the sole discretion of the court and that no one had

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threatened or promised him anything to enter the plea. (Id. at

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12).

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When asked why he was pleading guilty, Diaz responded that he

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just went down the wrong path. The court asked if he “walked into

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a Jackson’s gas station with a bad card.” (Id.) Diaz responded,

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“Yes. I was monkeying around with credit cards, you know.” (Id.)

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The court asked if he walked into the store with the intent to

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commit fraud, and Diaz answered “yes.” (Id. at 12-13).

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Defense counsel represented there was no question in her mind

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of Diaz’s competency to enter a plea, assist counsel, or understand

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the nature of the proceedings. (Id. at 11).

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At sentencing, Diaz stated:

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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.

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(Ex. 13 (Tr. 6)). The court then sentenced Diaz to 38 to 96 months

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on each count, each count consecutive to the others. (Id. at 7-

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8). Judgment of conviction was entered on May 2, 2013. (Ex. 14).

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Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 3 of 9

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On June 10, 2013, Diaz, through counsel, filed a notice of

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appeal. (Ex. 16). The appeal was dismissed as untimely. (Ex. 23).

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On

April

22,

2014,

Diaz

filed

a

state

petition

for

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postconviction relief. (Ex. 28). Counsel was appointed and filed

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a supplemental petition. (Exs. 36 & 43). The supplemental petition

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asserted two claims: (1) ineffective assistance of counsel for

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failing to perfect a timely appeal on Diaz’s behalf; and (2)

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ineffective assistance of counsel for failing to investigate Diaz’

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mental health and intellectual issues, which resulted in the entry

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of a plea that was not knowing, voluntary and intelligent. (Ex.

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43).

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conducted an evidentiary hearing on the claim that counsel failed

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to perfect a timely appeal.

The state court dismissed the latter claim as conclusory and

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At the evidentiary hearing, the court noted, in relevant part,

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that Diaz “clearly is struggling with some issues of psychiatric

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nature, though not enough to raise an issue of competency.” (Ex.

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62 (Tr. 51)). The court went on to state that at the change of

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plea hearing, neither he nor Diaz’s attorney felt that Diaz was

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unable to understand the nature of the proceedings. (Id. at 51-

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52).

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The trial court ultimately granted Diaz’s claim that counsel

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was ineffective for failing to file a timely appeal and authorized

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Diaz to file a direct appeal. (Ex. 63).

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Nevada Court of Appeals affirmed Diaz’s judgment of conviction.

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(Ex. 97). On appeal of the partial denial of Diaz’s postconviction

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petition, the Nevada Court of Appeals affirmed. (Ex. 100).

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On direct appeal, the

Diaz thereafter filed the instant federal habeas petition.

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Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 4 of 9

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Standard

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

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

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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)

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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.

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AEDPA “modified a federal habeas court’s role in reviewing
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state prisoner applications in order to prevent federal habeas
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‘retrials’ and to ensure that state-court convictions are given
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effect to the extent possible under law.” Bell v. Cone, 535 U.S.
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685, 693-694 (2002). This court’s ability to grant a writ is
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limited to cases where “there is no possibility fairminded jurists
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could disagree that the state court’s decision conflicts with
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[Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86,
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102 (2011). The Supreme Court has emphasized “that even a strong
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case for relief does not mean the state court’s contrary conclusion
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was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75
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(2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
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(describing the AEDPA standard as “a difficult to meet and highly
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deferential standard for evaluating state-court rulings, which
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demands that state-court decisions be given the benefit of the
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doubt”) (internal quotation marks and citations omitted.)
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Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 5 of 9

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A state court decision is contrary to clearly established

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

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

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

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court

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indistinguishable from a decision of [the Supreme Court] and

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nevertheless arrives at a result different from [the Supreme

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

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

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confronts

a

set

of

facts

that

are

materially

694).

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A state court decision is an unreasonable application of

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clearly established Supreme Court precedent, within the meaning of

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

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

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

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

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The “unreasonable application” clause requires the state court

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

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application

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

of

clearly

established

law

must

be

objectively

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

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

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

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

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

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court factual determinations. Id. The governing standard is not

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satisfied by a showing merely that the state court finding was

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Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 6 of 9

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“clearly

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substantially more deference:

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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.

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

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Lambert, 393 F.3d at 972.

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

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are presumed to be correct unless rebutted by clear and convincing

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evidence.

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

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Cullen, 563 U.S. at 181.

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are entitled to deference under AEDPA and may not be disturbed

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unless they were ones “with which no fairminded jurist could

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

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Analysis

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The

petitioner

bears

the

burden

of

proving

by

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The state courts’ decisions on the merits

Ground One, the sole surviving claim of the petition, asserts

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ineffective

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asserts that counsel was ineffective for failing to obtain a mental

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health evaluation to determine his state of mind at the time he

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committed the offense and whether he was impaired or competent to

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participate in formulating a defense. (ECF No. 1 at 3).

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assistance

of

trial

counsel.

Specifically,

In addressing Diaz’s claim, the Nevada Court of Appeals held:

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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
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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.

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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.

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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.

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(Ex. 100 at 2-3).

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The state courts’ decision was not objectively unreasonable.

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Ineffective assistance of counsel claims are governed by

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

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a petitioner must satisfy two prongs to obtain habeas relief—

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

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

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burden of demonstrating that his counsel’s performance was so

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deficient

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

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

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

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range

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Mirzayance,

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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)

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(citation

standard

of

Knowles

v.

omitted).

In

Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 8 of 9

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the burden of showing that the decision reached would reasonably

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likely have been different absent [counsel’s] errors.” Strickland,

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466 U.S. at 696.

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Diaz did not here or in state court present any evidence of

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mental health issues that an evaluation would have uncovered, which

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would have either rendered him incompetent or provided a defense

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to the crimes with which he was charged. In fact, the record lacks

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any indication that Diaz did not understand the plea he was

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entering. Diaz repeatedly confirmed throughout the proceedings

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that he understood the crimes he had committed, felt remorseful,

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and did not intend to commit any more crimes. Further, Diaz has

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not established that he would not have plead guilty if he had been

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evaluated.

Diaz received a substantial benefit from his decision

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to

eleven

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dismissed.

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performance nor prejudice, and the state courts’ rejection of this

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claim was neither contrary to, or an unreasonable application of,

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clearly established federal law, nor an unreasonable determination

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of the facts.

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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

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In order to proceed with an appeal, Diaz 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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warrant a certificate of appealability. Allen, 435 F.3d at 951; 28
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Case 3:17-cv-00570-HDM-CLB Document 28 Filed 07/20/20 Page 9 of 9

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

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

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would find the district court’s assessment of the constitutional

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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, Diaz

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has the burden of demonstrating that the issues are debatable among

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jurists

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differently;

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encouragement to proceed further. Id.

of

reason;
or

that

that

a

the

court

questions

could

resolve

the

are

adequate

to

issues
deserve

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The court has considered the issues raised by Diaz, with

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respect to whether they satisfy the standard for issuance of a

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certificate of appealability and determines that none meet that

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standard.

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appealability.

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Conclusion

Accordingly,

Diaz

will

be

denied

a

certificate

of

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In accordance with the foregoing, IT IS THEREFORE ORDERED

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that the petition for writ of habeas corpus relief (ECF No. 1) is

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DENIED. This action is therefore DISMISSED WITH PREJUDICE.

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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.

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IT IS SO ORDERED.

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DATED: This 20th day of July, 2020.

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____________________________
UNITED STATES DISTRICT JUDGE

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