1

2

3

4

5 UNITED STATES DISTRICT COURT

6 DISTRICT OF NEVADA

7

JESSIE MATTHEW DIAZ, Case No. 3:17-cv-00570-HDM-CLB 8

Petitioner, 9 v. ORDER

10 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. 28- 25 29)).1 26 27 1 The exhibits cited in this order, comprising the relevant state 28 court record, are located at ECF Nos. 6-8. 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 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 23 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 24 Christian. I’ve learned from this and I’ve changed and I’m not going to do any more crimes or never get caught 25 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). 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). The state court dismissed the latter claim as conclusory and 12 conducted an evidentiary hearing on the claim that counsel failed 13 to perfect a timely appeal. 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). On direct appeal, the 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 Diaz thereafter filed the instant federal habeas petition. 28 1 Standard 2

(d) provides the legal standards for this 3 Court’s consideration of the merits of the petition in this case:

4 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State 5 court shall not be granted with respect to any claim that was adjudicated on the merits in State court 6 proceedings unless the adjudication of the claim –

7 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 8 established Federal law, as determined by the Supreme Court of the United States; or 9

(2) resulted in a decision that was based on an 10 unreasonable determination of the facts in light of the evidence presented in the State court 11 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,

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,

, 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.”

(citing Lockyer v. Andrade,

, 75 23 (2003)); see also Cullen v. Pinholster,

(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 1 A state court decision is contrary to clearly established 2 Supreme Court precedent, within the meaning of

, 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 confronts a set of facts that are materially 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,

(quoting Williams v.

U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 10 694). 11 A state court decision is an unreasonable application of 12 clearly established Supreme Court precedent, within the meaning of 13

(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,

(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 of clearly established law must be objectively 20 unreasonable. Id. (quoting Williams, 529 U.S. at 409). 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,

(9th Cir. 2004). This clause requires 25 that the federal courts “must be particularly deferential” to state 26 court factual determinations.

The governing standard is not 27 satisfied by a showing merely that the state court finding was 28 1 “clearly erroneous.” at 973. Rather, AEDPA requires 2 substantially more deference:

3 .... [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court 4 record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district 5 court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of 6 appellate review, could not reasonably conclude that the finding is supported by the record. 7

8 Taylor v. Maddox,

(9th Cir. 2004); see also 9 Lambert,

. 10 Under

(e)(1), state court factual findings 11 are presumed to be correct unless rebutted by clear and convincing 12 evidence. The petitioner bears the burden of proving by a 13 preponderance of the evidence that he is entitled to habeas relief. 14 Cullen,

. The state courts’ decisions on the merits 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. -,

(2015). 18 Analysis 19 Ground One, the sole surviving claim of the petition, asserts 20 ineffective assistance of trial counsel. Specifically, Diaz 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 In addressing Diaz’s claim, the Nevada Court of Appeals held: 26 Diaz did not identify any evidence counsel could have 27 uncovered through reasonably diligent investigation into these issues. Accordingly, Diaz did not meet his burden 28 to demonstrate his counsel acted in an objectively 1 have refused to plead guilty and insisted on proceeding to trial had counsel investigated Diaz’ background, 2 education, and mental or emotional limitations.

3 Further, in the written plea agreement, Diaz asserted he understood all matters contained within that agreement, 4 including the charges and possible sentences, and he asserted his counsel had carefully explained the plea 5 agreement to him. Moreover, at the plea canvass, Diaz informed the district court he had discussed the plea 6 agreement with his counsel, he understood the agreement, and he then entered a guilty plea pursuant to the 7 agreement.

8 Under these circumstances, Diaz failed to demonstrate his counsel induced him to accept a guilty plea agreement 9 he did not understand and Diaz did not demonstrate a reasonable probability he would have refused to plead 10 guilty and would have insisted on proceeding to trial had counsel made further efforts to explain the guilty 11 plea agreement. As Diaz’ claim was not supported by specific allegations that are not belied by the record 12 and because his claim would not have entitled him to relief, the district court properly dismissed it without 13 considering it at the evidentiary hearing. 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,

(1984). Under Strickland, 18 a petitioner must satisfy two prongs to obtain habeas relief— 19 deficient performance by counsel and prejudice.

. 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 that it fell below an “objective standard of 23 reasonableness.”

. “‘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 of reasonable professional assistance.’” Knowles v. 27 Mirzayance,

(2009) (citation omitted). In 28 assessing prejudice, the court “must ask if the defendant has met 1 the burden of showing that the decision reached would reasonably 2 likely have been different absent [counsel’s] errors.” Strickland, 3

. 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 plead: eleven of the fourteen charges against him were 15 dismissed. As such, Diaz has established neither deficient 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 Diaz is not entitled to relief on Ground One of the petition. 21 Certificate of Appealability 22 In order to proceed with an appeal, Diaz must receive a 23 certificate of appealability.

(c)(1); Fed. R. App.

; 9th Cir. R. 22-1; Allen v. Ornoski,

, 950-951 25 (9th Cir. 2006); see also United States v. Mikels,

, 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,

;

(c)(2); Slack v. McDaniel,

, 483-84 2\| (2000). “The petitioner must demonstrate that reasonable jurists 3|} would find the district court’s assessment of the constitutional claims debatable or wrong.” Allen,

(quoting Slack,

). In order to meet this threshold inquiry, Diaz 6|| has the burden of demonstrating that the issues are debatable among 7|\| jurists of reason; that a court could resolve the issues 8|| differently; or that the questions are adequate to deserve encouragement to proceed further.

10 The court has considered the issues raised by Diaz, with respect to whether they satisfy the standard for issuance of a 12|| certificate of appealability and determines that none meet that standard. Accordingly, Diaz will be denied a certificate of appealability. 15|| Conclusion 16 In accordance with the foregoing, IT IS THEREFORE ORDERED that the petition for writ of habeas corpus relief (ECF No. 1) is 18|| DENIED. This action is therefore DISMISSED WITH PREJUDICE. 19 IT IS FURTHER ORDERED that Diaz is DENIED a certificate of 20|| appealability. 21 The Clerk of Court shall enter final judgment accordingly and 22|| close this case. 23 IT IS SO ORDERED. 24 DATED: This 20th day of July, 2020. 25 6 burn 9 ft KMh> 27 UNITED STATES DISTRICT JUDGE 28