UNITED STATES DISTRICT COURT 7
DISTRICT OF NEVADA 8
9 GILES MANLEY, Case No. 3:11-cv-00354-HDM-WGC
10 Petitioner, v. ORDER 11
WARDEN; DIRECTOR OF NEVADA 12 DEPARTMENT OF CORRECTIONS, et al., 13
Respondents. 14
15 This is a counseled petition for writ of habeas corpus 16 pursuant to 28 U.S.C § 2254 filed by Nevada state prisoner Giles 17 Manley. (ECF No. 62). The second amended petition comes before the 18 court for consideration of the surviving claims. 19 I. Background 20 On May 8, 2002, 22-year-old Isaac Perez, an elementary school 21 custodian, was forced from the school where he was working into 22 his own car by then 16-year-old Giles Manley. With Manley in the 23 back seat, Perez drove. As he approached a traffic stop that was 24 being conducted by Nevada Highway Patrol Trooper Guy Davis, Perez 25 slowly drove his car into the stopped vehicle. Manley shot Perez 26 in the head, neck and upper back five times, killing him, exited 27 the left rear of the vehicle, fired a shot at Davis, hitting Davis 28 in the foot, and fled. 1 Nearby, Manley found a Chevy Tahoe that was occupied by 2 Heriberto Casas, Casas’ wife and their infant child. Pointing the 3 gun at Casas’ head, Manley ordered Casas to move over to the 4 passenger seat. Casas pleaded with Manley not to shoot and, as he 5 did so, was able to exit the car. Casas’ wife grabbed their child 6 and exited the vehicle at the same time. Pointing the gun at Casas’ 7 wife and then back to Casas, Manley ordered Casas back into the 8 car. Instead of complying, Casas gave Manley the keys to the car 9 and he and his wife ran. 10 Manley took off in the Chevy and was on the lam for several 11 hours before he was located by law enforcement. Manley then led 12 officers on a high-speed chase through the streets of Las Vegas, 13 a chase that ended only after Manley entered the intersection of 14 Vegas Drive and Decatur against a red light, going upwards of 75 15 miles per hour, and crashed the Chevy into a car driven by Patrick 16 Melia. (Exs. 2 & 3).1 Melia was pronounced dead at the scene, and 17 Manley was taken into custody directly from the wreckage. 18 The State charged Manley in a twelve-count indictment that 19 included two counts of murder with use of a deadly weapon, one 20 count of attempt murder with use of a deadly weapon, three counts 21 of attempt first-degree kidnapping with use of a deadly weapon, 22 one count of first-degree kidnapping with use of a deadly weapon, 23 and several other related charges. (Ex. 5). The State also filed 24 a notice of intent to seek death penalty. (Ex. 7). 25
26 1 The exhibits cited in this order, comprising the relevant state 27 court record, are located at ECF Nos. 31-34, 41, 49, 56, 63 and 64. The court would note that although exhibits also appear at ECF 28 No. 35, the petitioner filed a notice of corrected image for the exhibits therein. The corrected images are located at ECF No. 41. 1 Manley’s appointed attorneys, Joseph Abood and Nancy Lemcke, 2 had Manley evaluated for competency by Dr. John Paglini. Dr. 3 Paglini deemed Manley competent to stand trial and assist in his 4 defense, but recommended further evaluation – specifically a 5 neuropsychological evaluation to determine whether Manley had 6 suffered any soft tissue damage in the crash ending his crime spree 7 and a complete psychological evaluation. (Ex. 99). 8 Abood and Lemcke then engaged Dr. Gregory Brown to determine 9 whether Manley suffered from mental retardation or had a 10 psychiatric diagnosis. (Ex. 100). Dr. Brown concluded that Manley 11 had an IQ of 80 and explained that, because “Full Scale IQ of 70 12 or lower is indicative of mental retardation,” Manley was “in the 13 range of borderline intellectual functioning just above mental 14 retardation but not into the mental retardation level.” (Id. at 15 6).2 Dr. Brown also found Manley was dependent on marijuana, was 16 experiencing high stress levels, and had a GAF in the 70 to 80 17 range but noted no other psychiatric diagnoses. (Id.) 18 The defense filed a motion “to Preclude the State From Seeking 19 the Death Penalty Against a Mentally Handicapped Juvenile.” (Ex. 20 15). The motion asserted that in addition to borderline 21 intellectual functioning, Manley had poor coordination, several 22 disrupted school experiences, behavior problems, a history of 23 depressed and withdrawn moods, and “almost certainly . . . Fetal 24 Alcohol Syndrome” based on his mother’s admission that she used 25 alcohol, marijuana, cocaine and LSD during her first trimester of 26 pregnancy and numerous times after. (Id. at 3).3 The court denied 27 28 2 Citation is to ECF page number at the top of the page. 3 Citation is to original page of document. 1 the motion. (Exs. 17 & 18). Thereafter, Manley accepted an offer 2 in which he agreed to plead guilty to all counts and accept the 3 maximum sentence on each count in exchange for the death penalty 4 being taken off the table. (Exs. 19 & 20). 5 At the change of plea hearing, Abood set forth the terms of 6 the parties’ agreement. (Ex. 20 (Tr. 2)). Before canvassing Manley, 7 the court asked about the negotiations, stating in particular that 8 it “want[ed] to be assured that Mr. Manley knows what he is doing, 9 given his age, and how many times [counsel] talked to him, did his 10 family talk to him.” (Ex. 20 (Tr. 2-3)). Abood explained what 11 occurred after the motion to dismiss the death penalty was denied:
12 [T]he question then became what would be the likelihood of the State getting the death penalty in this case? It 13 was our reason and judgment that it was a very good likelihood. So, obviously, faced with a situation like 14 that, Mr. Manley has determined that it would be in his best interest to plead guilty pursuant to this guilty 15 plea agreement in order to avoid the death penalty. 16 (Id. at 3). Abood stated that he and Lemcke discussed the case and 17 the plea with Manley and his family many times, that they went 18 over the plea agreement very carefully with Manley and explained 19 to Manley his rights, that they both felt it was in Manley’s best 20 interest to plead, and that they believed Manley felt the same way 21 and that he understood the nature of the plea agreement. (Id. at 22 3-5). 23 The court then asked Manley his name and age, which Manley 24 answered, and read each of the charges before asking if Manley 25 understood them. Manley replied, “Yes.” (Id. at 6). Asked how he 26 pled, Manley responded, “Guilty.” (Id.) Asked if his plea was free 27 and voluntary, Manley stated, “Yeah.” (Id.) The court asked Manley 28 if he had heard the negotiations as set forth by counsel and 1 whether that was his understanding of the plea agreement, to which 2 Manley responded, “Yeah.” (Id.) In response to further questions, 3 Manley indicated he had gone over the agreement with counsel and 4 his mom, and that he had read, understood and signed the agreement. 5 (Id. at 6-7). The court read each charge in full and asked Manley 6 if he committed that crime, and to each Manley responded yes. (Id. 7 at 7-13). The court then accepted the plea as having been entered 8 freely and voluntarily. (Id. at 13-14). 9 Less than two months later, at his sentencing hearing, Manley 10 told the court he was not ready to proceed because he wanted to 11 withdraw his plea and go to trial. (Ex. 21 (Tr. 4)). Abood 12 represented to the court that Manley had made a similar statement 13 to him and that, based on their discussions, Abood saw no basis 14 for moving to withdraw the plea. (Id. at 5-6). On the grounds that 15 the court saw nothing wrong with plea agreement and defense counsel 16 did not believe a motion to withdraw was appropriate, the court 17 denied the defendant’s oral motion and proceeded with sentencing. 18 (Id. at 6 et seq.). Manley was sentenced, pursuant to the plea 19 agreement, to the statutory maximum term of incarceration on each 20 count, all counts consecutive, including life without the 21 possibility of parole on each of the murder counts. (Ex. 23). 22 The next day, Manley’s mother submitted a motion for 23 withdrawal of counsel on Manley’s behalf, asserting that defense 24 counsel
25 led the Defendant to believe that he would be able to withdraw his Plea Agreement if and when the Supreme Court 26 passed the law that the death penalty cannot be sought against a juvenile [but that o]nce the Plea Agreement 27 was signed Defendant was told that he would not be able to withdraw his guilty plea. 28 1 (Ex. 22). The court granted the motion to withdraw and appointed 2 new counsel for purposes of appeal. (Ex. 24). At the hearing 3 appointing new counsel, Manley again asked to withdraw plea. The 4 court indicated the request had been denied and was a matter for 5 appeal. (Id.) 6 On direct appeal, the Nevada Supreme Court affirmed the denial 7 of Manley’s motion to withdraw plea. (Ex. 35). 8 Manley then filed a state postconviction petition in which he 9 argued that he pled guilty on the false promise that he would be 10 allowed to withdraw his plea if the law were to change. (Exs. 37 11 & 39). Without appointing counsel or conducting an evidentiary 12 hearing, the trial court denied relief. (Ex. 43). The Nevada 13 Supreme Court reversed and remanded for both an evidentiary hearing 14 and appointment of counsel. (Ex. 51). 15 On remand, appointed counsel filed an amended petition and, 16 after the evidentiary hearing, a second amended petition. (Exs. 53 17 & 55). Before the evidentiary hearing began, the State believed 18 that Abood would testify that he had advised Manley that he could 19 withdraw his plea if the law were changed to bar the execution of 20 minors. (Ex. 54 (Tr. 3-4)). 21 When he took the stand, after he had reviewed his notes in 22 his file, Abood testified, under oath, that he had made no such 23 promise. According to Abood, he and Manley had discussed that the 24 law might someday change to abolish the execution of juveniles. 25 Abood testified that he told Manley that if this were to happen, 26 Manley could ask that his plea be withdrawn. But he denied telling 27 Manley the plea could definitely be withdrawn and said that in 28 fact he told Manley there were no guarantees such a request would 1 be granted. ( at 13, 15-16, 21-22). Abood did not recall 2 discussing the likelihood that a motion to withdraw plea would be 3 granted, however. (Id. at 25). 4 Abood further testified that based on the facts of the case 5 and Manley’s juvenile history, he believed there was a substantial 6 likelihood the death penalty would be imposed. (Id. at 9-10). 7 Manley also understood he was a likely candidate for the death 8 penalty. (Id. at 11-12). As such, Abood’s primary goal became 9 saving Manley’s life. (Id. at 27-28). Abood explained that their 10 intent in pleading 11 was to put [Manley] in the best position possible to at 12 least be able to raise the issue that he entered his plea based on a fear of receiving the death penalty, and 13 if the death penalty were ever abolished in the future, he would be in a position to do exactly what he’s doing 14 right now, and that is to request that his plea be withdrawn based on a change in the law. And we made no 15 secret about that. We made it clear that we wanted him to be at least in the position that he could be, at least 16 request that his plea be withdrawn. 17 (Id. at 13). 18 Lemcke also testified. She agreed that their intent was to 19 put Manley in the best position to obtain postconviction relief, 20 whether he went to trial or plea, though she could not remember 21 the specifics of what she or Abood said to Manley in their 22 conversations. (Id. at 48-49). She also did not recall discussing 23 the likelihood of success on a motion to withdraw the plea with 24 Manley. (Id. at 51). The court then asked:
25 There’s a lot of difference in telling a client, listen, if the Supreme Court and Roper says that you’re not 26 allowed to execute juveniles, we tell you right now that you can withdraw your plea to this case, as opposed to 27 saying, listen, if the Supreme Court comes down, then you could request or ask but there’s no guarantees, you 28 could ask to withdraw your plea. There’s a little 1 Court has [sic] to what happened here? 2 (Id. at 59). Lemcke responded: “I cannot imagine that either myself 3 or Mr. Abood under any circumstance would say definitely you can 4 do this just based on – we guarantee you as your lawyers that you 5 will be able to withdraw your plea. That representation I cannot 6 imagine would ever have been made.” (Id. at 59-60). Lemcke also 7 testified that she went through the plea agreement carefully with 8 Manley and asked him to restate things in his own words so she 9 knew he understood it. (Id. at 50). 10 Finally, the DA assigned to Manley’s case, Christopher Lalli, 11 testified. Lalli agreed that based on the circumstances of the 12 case, and Manley’s background which included committing sexual 13 offenses on his younger sisters as a juvenile, that he believed 14 Manley was likely to be sentenced to death. (Id. at 64-65). But he 15 testified that he was willing to not seek the death penalty in 16 light of Manley’s dysfunctional childhood and youth and on the 17 assurance that Manley would “never ever be released from custody.” 18 (Id. at 66). Lalli acknowledged that he and Abood had conversations 19 about Manley seeking to withdraw his plea if the law were to 20 change, but he stated he “absolutely did not” agree that Manley 21 could withdraw his plea if the law changed and “would not have 22 agreed to anything like that.” (Id. at 67). 23 After the evidence was submitted, Manley’s postconviction 24 counsel told the court that Abood’s testimony “absolutely shocked” 25 him as it was totally contrary to what Abood said he was going to 26 say. (Id. at 71). 27 The court continued the hearing for further argument, during 28 which counsel for the State again affirmed that based on a 1 conversation with Abood a couple weeks before the hearing, “it was 2 [his] understanding . . . that [Abood] would testify that he had 3 advised Mr. Manley that he could withdraw his plea if the law was 4 changed, that was my understanding, that was Mr. Goldstein’s 5 understanding.” (Ex. 57 (Tr. 5)). But, the State’s attorney 6 continued:
7 I will say on Mr. Abood’s behalf that I know from talking with him the morning of the hearing before we came in 8 court that he reviewed the files after those conversations with Mr. Goldstein and myself. Now, 9 whether his review of the file jogged his memory and caused him to testify differently, or whether he changed 10 his testimony for some other reason, I don’t know but Ms. Lemke [sic] and Mr. Lally’s [sic] testimony was 11 totally consistent with the testimony that Mr. Abood gave at the hearing. 12
13 (Id. at 5-6). Postconviction counsel also submitted a sworn 14 affidavit stating that Abood had “unequivocally stated that he did 15 in fact advise Manley that he would be able to withdraw his plea” 16 if the State of Nevada abolished the death penalty for juvenile 17 offenders. (Ex. 55 at 11-12). He further stated: “I felt there was 18 absolutely no ambiguity in Mr. Abood’s words and I was utterly 19 certain that Mr. Abood was telling me had had advised Mr. Manley 20 accordingly.” (Id. at 12). 21 The trial court found Abood credible that he did not promise 22 Manley he could withdraw his plea and denied Manley’s petition. 23 (Ex. 58). The Nevada Supreme Court affirmed. (Ex. 65). 24 Thereafter, Manley pursued another state court postconviction 25 petition, which was dismissed as procedurally barred. (Exs. 71 & 26 80). The Nevada Supreme Court affirmed. (Ex. 86). 27 In May 2011, Manley initiated the instant federal habeas 28 action. Counsel was appointed, and in December 2011, had Manley 1 evaluated by Dr. Antolin Llorente, a licensed psychologist and 2 clinical neuropsychologist. Like Dr. Brown earlier found, Dr. 3 Llorente concluded that Manley functioned in the borderline 4 category just above mental retardation. But, Dr. Llorente 5 concluded, given his cognitive deficits, substance abuse, history 6 of mental illness, lack of family support, and likely organic brain 7 damage, Manley could not have understood the plea agreement or the 8 consequences of his plea. (Ex. 101 at 24-25). 9 Dr. Llorente’s opinion was included in a third petition filed 10 with the state courts during the pendency of this action. (Ex. 11 88). The trial court dismissed that petition as procedurally 12 barred, and the Nevada Supreme Court affirmed. (Exs. 139 & 147). 13 The surviving claims of the second amended petition are now 14 before this court for either merits review or, in one case, for a 15 determination as to whether Manley’s procedural default can be 16 excused. 17 II. Standard 18 A. Merits 19 28 U.S.C. § 2254(d) provides the legal standards for this 20 Court’s consideration of the merits of the petition in this case:
21 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State 22 court shall not be granted with respect to any claim that was adjudicated on the merits in State court 23 proceedings unless the adjudication of the claim –
24 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 25 established Federal law, as determined by the Supreme Court of the United States; or 26
(2) resulted in a decision that was based on an 27 unreasonable determination of the facts in light of the evidence presented in the State court 28 proceeding. 1 AEDPA “modified a federal habeas court’s role in reviewing 2 state prisoner applications in order to prevent federal habeas 3 ‘retrials’ and to ensure that state-court convictions are given 4 effect to the extent possible under law.” Bell v. Cone, 535 U.S. 5 685, 693-694 (2002). This court’s ability to grant a writ is 6 limited to cases where “there is no possibility fairminded jurists 7 could disagree that the state court’s decision conflicts with 8 [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 9 102 (2011). The Supreme Court has emphasized “that even a strong 10 case for relief does not mean the state court’s contrary conclusion 11 was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 12 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) 13 (describing the AEDPA standard as “a difficult to meet and highly 14 deferential standard for evaluating state-court rulings, which 15 demands that state-court decisions be given the benefit of the 16 doubt”) (internal quotation marks and citations omitted.) 17 A state court decision is contrary to clearly established 18 Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, 19 “if the state court applies a rule that contradicts the governing 20 law set forth in [the Supreme Court’s] cases” or “if the state 21 court confronts a set of facts that are materially 22 indistinguishable from a decision of [the Supreme Court] and 23 nevertheless arrives at a result different from [the Supreme 24 Court’s] precedent.” Andrade, 538 U.S. 63 (quoting Williams v. 25 Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 26 694). 27 A state court decision is an unreasonable application of 28 clearly established Supreme Court precedent, within the meaning of 1 28 U.S.C. § 2254(d), “if the state court identifies the correct 2 governing legal principle from [the Supreme Court’s] decisions but 3 unreasonably applies that principle to the facts of the prisoner’s 4 case.” Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). 5 The “unreasonable application” clause requires the state court 6 decision to be more than incorrect or erroneous; the state court’s 7 application of clearly established law must be objectively 8 unreasonable. Id. (quoting Williams, 529 U.S. at 409). 9 To the extent that the state court’s factual findings are 10 challenged, the “unreasonable determination of fact” clause of § 11 2254(d)(2) controls on federal habeas review. E.g., Lambert v. 12 Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires 13 that the federal courts “must be particularly deferential” to state 14 court factual determinations. Id. The governing standard is not 15 satisfied by a showing merely that the state court finding was 16 “clearly erroneous.” Id. at 973. Rather, AEDPA requires 17 substantially more deference:
18 .... [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court 19 record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district 20 court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of 21 appellate review, could not reasonably conclude that the finding is supported by the record. 22
23 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also 24 Lambert, 393 F.3d at 972. 25 Under 28 U.S.C. § 2254(e)(1), state court factual findings 26 are presumed to be correct unless rebutted by clear and convincing 27 evidence. The petitioner bears the burden of proving by a 28 preponderance of the evidence that he is entitled to habeas relief. 1 , 563 U.S. at 181. The state courts’ decisions on the merits 2 are entitled to deference under AEDPA and may not be disturbed 3 unless they were ones “with which no fairminded jurist could 4 agree.” Davis v. Ayala, - U.S. -, 135 S. Ct. 2187, 2208 (2015). 5 B. Procedural Default 6 A procedural default may be excused only if “a constitutional 7 violation has probably resulted in the conviction of one who is 8 actually innocent,” or if the prisoner demonstrates cause for the 9 default and prejudice resulting from it. Murray v. Carrier, 477 10 U.S. 478, 496 (1986). 11 To demonstrate cause for a procedural default, the petitioner 12 must “show that some objective factor external to the defense 13 impeded” his efforts to comply with the state procedural rule. 14 Murray, 477 U.S. at 488. For cause to exist, the external 15 impediment must have prevented the petitioner from raising the 16 claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). 17 With respect to the prejudice prong, the petitioner bears 18 “the burden of showing not merely that the errors [complained of] 19 constituted a possibility of prejudice, but that they worked to 20 his actual and substantial disadvantage, infecting his entire 21 [proceeding] with errors of constitutional dimension.” White v. 22 Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v. 23 Frady, 456 U.S. 152, 170 (1982)). 24 III. Analysis 25 A. Ground 1(A) 26 In Ground 1(A), Manley asserts that his plea was not knowing, 27 intelligent and voluntary, in violation of his Fifth Amendment due 28 process rights. (ECF No. 62 at 10). 1 The federal constitutional guarantee of due process of law 2 requires that a guilty plea be knowing, intelligent and voluntary. 3 Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. 4 Alabama, 395 U.S. 238, 242 (1969); United States v. Delgado–Ramos, 5 635 F.3d 1237, 1239 (9th Cir. 2011). “The voluntariness of [a 6 petitioner’s] guilty plea can be determined only by considering 7 all of the relevant circumstances surrounding it.” Brady, 397 U.S. 8 at 749. Those circumstances include “the subjective state of mind 9 of the defendant . . . .” Iaea v. Sunn, 800 F.2d 861, 866 (9th 10 Cir. 1986). 11 Addressing the “standard as to the voluntariness of guilty 12 pleas,” the Supreme Court has stated:
13 (A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any 14 commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or 15 promises to discontinue improper harassment), misrepresentation (including unfulfilled or 16 unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper 17 relationship to the prosecutor’s business (e.g. bribes). 18 Brady, 397 U.S. at 755 (quoting Shelton v. United States, 246 F.2d 19 571, 572 n.2 (5th Cir. 1957) (en banc), rev’d on other grounds, 20 356 U.S. 26 (1958)); see also North Carolina v. Alford, 400 U.S. 21 25, 31 (1970) (noting that the “longstanding test for determining 22 the validity of a guilty plea is ‘whether the plea represents a 23 voluntary and intelligent choice among the alternative courses of 24 action open to the defendant.’”); Allen v. Quinn, 383 Fed. App’x 25 679, 680 (9th Cir. 2010) (“Under Supreme Court precedent, a plea 26 is voluntary so long as it is entered by one fully aware of the 27 direct consequences, and not induced by threats, 28 misrepresentation, or improper promises.”). 1 In , 431 U.S. 63 (1977), the Supreme 2 Court addressed the evidentiary weight of the record of a plea 3 proceeding when the plea is subsequently subject to a collateral 4 challenge. While noting that the defendant’s representations at 5 the time of his guilty plea are not “invariably insurmountable” 6 when challenging the voluntariness of his plea, the court stated 7 that, nonetheless, the defendant’s representations, as well as any 8 findings made by the judge accepting the plea, “constitute a 9 formidable barrier in any subsequent collateral proceedings” and 10 that “[s]olemn declarations in open court carry a strong 11 presumption of verity.” Blackledge, 431 U.S. at 74; see also Muth 12 v. Fondren, 676 F.3d 815, 821 (9th Cir. 2012); Little v. Crawford, 13 449 F.3d 1075, 1081 (9th Cir. 2006). 14 “A habeas petitioner bears the burden of establishing that 15 his guilty plea was not voluntary and knowing.” Little, 449 F.3d 16 at 1080. 17 On direct appeal, the Nevada Supreme Court found Manley’s 18 plea was knowing, voluntary and intelligent:
19 The record before this court belies Manley’s claim that the district court failed to ensure his plea was entered 20 voluntarily and knowingly. . . . In the written plea agreement, Manley acknowledged that he agreed to plead 21 guilty, understood the consequences of his plea, understood the rights and privileges he waived by 22 pleading guilty, and that he voluntarily signed the agreement after consulting with counsel. During the 23 district court’s plea canvass, Manley’s trial counsel, Joseph Abood, discussed the sequence of events leading 24 to Manley’s decision to enter a plea agreement. Abood stated that he and co-counsel spoke extensively with 25 Manley, shared his discovery with him, and answered his questions. Abood also stated that he had thoroughly 26 reviewed the written plea agreement with Manley, explaining to Manley his rights, the possible penalties, 27 and the specifics of each crime. Manley acknowledged that he read and understood the plea agreement, he went 28 over the plea agreement with counsel, he understood the 1 entered his guilty plea. Before accepting Manley’s plea, the district court read each count on the amended 2 indictment and Manley acknowledged that each count was correct. Based on the totality of the circumstances, we 3 conclude that Manley’s guilty plea agreement was entered voluntarily, knowingly, and intelligently. 4
5 (Ex. 35 at 5). 6 Manley argues that the state court’s conclusion was 7 objectively unreasonable. He asserts that his plea was not knowing, 8 voluntary and intelligent because he did not understand the 9 consequences of the plea, and he asserts he did not understand the 10 consequences because (1) the plea canvass was infirm in light of 11 his severe cognitive limitations, and (2) he pled based on an 12 improper, and false, promise. 13 i. Ground 1(A)(1) 14 Manley argues that the court did not ask enough questions to 15 confirm that he understood the agreement and the consequences of 16 his plea, especially given that he was a juvenile with severe 17 cognitive defects. (ECF No. 62 at 12). Specifically, he argues, 18 the court directed most of its questions to his attorney, rather 19 than to Manley himself, and the few questions directed to Manley 20 were insufficient to establish he truly understood the agreement. 21 (Id. at 12-14). He argues that Nevada Supreme Court did not 22 consider the impact of his cognitive limitations in reaching its 23 conclusion, and that its conclusion that his plea was knowing and 24 voluntary is therefore objectively unreasonable. 25 There is “no fixed colloquy, no set of sequence or number of 26 questions and answers, no minimum length of hearing, no Talismanic 27 language that the judge is required to use.” Stewart v. Peters, 28 958 F.2d 1379, 1384 (7th Cir. 1992); see also Zepeda v. Figueroa, 1 2014 WL 2605360, at *3 (S.D. Cal. June 11, 2014); 2 Czerniak, 2007 WL 3046481, at *7 (D. Or. Oct. 7, 2007). The canvass 3 of Manley adopted Abood’s description of the plea and the reasons 4 why Manley was entering it, which occurred in Manley’s presence 5 and which Manley affirmed was correct. Abood also advised the court 6 that he and Lemcke had gone over the plea agreement very carefully 7 with Manley and that Abood believed Manley understood it and agreed 8 it was in his best interest. In response to questions of the court, 9 Manley affirmed that he understood the charges, had discussed the 10 agreement with counsel, and had read and understood the agreement. 11 Manley affirmed that he had committed each crime charged and that 12 his plea was free and voluntary. 13 The canvass itself must also be viewed in the context of the 14 plea agreement, which Manley signed. The agreement clearly set 15 forth the charges and the parties’ agreement as to the sentence. 16 It also stated that Manley was voluntarily entering his plea and 17 was not doing so on the basis of any promises of leniency by anyone 18 other than the promises set forth in the agreement. (Ex. 19 at 8). 19 The state courts were not objectively unreasonable in finding 20 the trial court’s canvass sufficient to establish that Manley was 21 aware of and understood the charges against him and the possible 22 penalties he faced, that he pled guilty to every charge in exchange 23 for the death penalty being abandoned by the State, and that he 24 was freely and voluntarily entering his plea. 25 This conclusion stands even in light of Manley’s status as a 26 juvenile with cognitive limitations. Two doctors evaluated Manley 27 before he entered his plea. Manley was found competent to 28 understand the proceedings and able to function intellectually, 1 albeit in borderline territory, without significant psychiatric 2 diagnosis. Manley’s attorneys took extra care to discuss and 3 explain the charges and plea to him in light of his cognitive 4 limitations. While Manley uses Dr. Llorente’s more recent 5 evaluation in 2011 to cast doubt on his ability to comprehend the 6 plea, an evaluation that took place nine years after the plea was 7 entered is insufficient to rebut the conclusions by two doctors 8 who evaluated Manley contemporaneously with his plea and whose 9 evaluations support a conclusion Manley was competent to enter a 10 plea. Finally, no evidence before either this court or the state 11 courts exists to show that Manley was under the influence of 12 medications that made it impossible for him to knowingly enter a 13 plea. Manley in fact averred in the plea agreement that he was not 14 under the influence of any such substances. (Ex. 19 at 8). In sum, 15 the canvass did not call into doubt the state courts’ conclusion 16 that Manley entered his plea knowingly, intelligently and 17 voluntarily and the totality of the circumstances sufficiently 18 supports the state courts’ conclusion in this regard. 19 ii. Ground 1(A)(2) 20 Manley asserts that he pleaded guilty only because counsel 21 said he would be allowed to withdraw the plea if the law changed 22 to bar execution of juveniles, and thus because his plea was based 23 on this improper promise, it was not knowing and voluntary. (ECF 24 No. 62 at 14). The Nevada Supreme Court addressed this claim as 25 follows:
26 Manley contends on appeal that the district court’s findings on this matter were erroneous. He asserts that 27 Deputy Public Defender Abood’s statements prior to and during the evidentiary hearing regarding the advice he 28 gave Manley about the plea, and whether he could withdraw 1 it if the law ever changed, . . . were contradictory. He maintains that the district court improperly denied his 2 request to withdraw the guilty plea. We disagree.
3 . . .
4 Here, Abood testified at the evidentiary hearing that he sought to place Manley in “the best position possible” 5 to seek to withdraw his guilty plea if the law regarding the execution of juvenile offenders changed and advised 6 Manley that “he could ask to withdraw his plea.” But Abood also advised Manley that “there was obviously no 7 guarantees” that he could withdraw his plea. If there had been such a guarantee, Abood continued, it would 8 have been a part of the plea negotiations.
9 Deputy Public Defender Lemcke testified that she had no specific recollection of whether Manley was told that he 10 could withdraw his plea if the law changed, but she generally corroborated Abood’s testimony. And Deputy 11 District Attorney Lalli testified that he “absolutely did not and would not have agreed” to the guilty plea if 12 it was conditioned upon Manley being able to withdraw it if the law changed. 13
Even if some of Abood’s statements and testimony on this 14 matter were inconsistent or unclear, the district court found Abood to be a credible witness, and Abood testified 15 unequivocally that he made “no guarantees” to Manley that he could withdraw his plea if the law regarding the 16 execution of juvenile offenders ever changed. Substantial evidence supports this finding, which 17 includes the testimony of Lemcke and Lalli. And the district court’s finding on this matter is not clearly 18 wrong. We therefore defer to it. 19 (Ex. 65 at 2-3).4 20 In short, the Nevada Supreme Court concluded Abood had not 21 promised Manley could withdraw his plea because Abood denied making 22 such a promise and the trial court found him credible. Manley 23 argues that this conclusion, and the trial court’s finding that 24 Abood was credible, were objectively unreasonable. 25 Manley argues that it is clear that he believed he had been 26 promised he could withdraw his plea if the law were to change. He 27 points to his statements at sentencing, his mother’s letter to the
28 4 Citation is to original page of document. 1 court, his motion to withdraw Abood as counsel, and Abood’s letter 2 to Manley that, Manley claims, reflects Manley’s understanding. 3 (Exs. 21, 22, 111 & 114). He argues that Abood was the only person 4 who testified that there was no promise and that such testimony 5 ran counter to the testimonies or experiences of everyone else. 6 Finally, he argues, Lemcke and Lalli’s testimonies did not support 7 Abood’s testimony, contrary to the finding of the state courts. 8 The state courts were not objectively unreasonable in finding 9 Abood’s testimony credible. The State’s attorney noted that Abood 10 had not reviewed his notes when he made his initial representation 11 and that Abood had reviewed his notes prior to his sworn testimony 12 in court. The letters written by Manley and his mother amount to 13 self-serving evidence, and Abood’s letter reflects only that 14 Manley and his mother were asserting such a promise had been made 15 – not that their assertion was necessarily true. Further, contrary 16 to Manley’s assertion, Abood’s testimony was in fact supported by 17 that of Lemcke and Lalli. Not only did Lemcke not contradict Abood, 18 she also stated that they never would have promised Manley an 19 absolute right to withdraw. And while Lalli’s testimony directly 20 establishes only that Manley never asked the State to guarantee 21 his right to withdraw his plea, it is at least circumstantial 22 evidence suggesting that a guarantee was not part of Abood’s 23 discussions with Manley. Finally, while Manley challenges Abood’s 24 credibility by alleging that even the advice Abood claims to have 25 given was itself ineffective, as will be discussed infra, the 26 advice was not ineffective. The state courts were thus not 27 objectively unreasonable in finding that Abood did not promise 28 1 Manley he would be able to withdraw his plea. Manley is not 2 therefore entitled to relief on Ground 1(A)(2) of the petition. 3 B. Ground Two 4 Ground Two asserts two claims of ineffective assistance of 5 counsel. First, Manley asserts that counsel failed to advise him 6 of the consequences of the plea. Second, he asserts that counsel 7 failed to sufficiently investigate the extent of his mental 8 impairments. Manley asserts that if counsel had advised him 9 properly of the consequences of the plea and had sufficiently 10 investigated his mental impairments, it is reasonably likely he 11 would have rejected the plea and proceeded to trial or received a 12 better plea deal. (ECF No. 62 at 21-28). 13 Ineffective assistance of counsel claims are governed by 14 Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, 15 a petitioner must satisfy two prongs to obtain habeas relief— 16 deficient performance by counsel and prejudice. 466 U.S. at 687. 17 With respect to the performance prong, a petitioner must carry the 18 burden of demonstrating that his counsel’s performance was so 19 deficient that it fell below an “objective standard of 20 reasonableness.” Id. at 688. “‘Judicial scrutiny of counsel’s 21 performance must be highly deferential,’ and ‘a court must indulge 22 a strong presumption that counsel's conduct falls within the wide 23 range of reasonable professional assistance.’” Knowles v. 24 Mirzayance, 556 U.S. 111, 124 (2009) (citation omitted). In 25 assessing prejudice, the court “must ask if the defendant has met 26 the burden of showing that the decision reached would reasonably 27 likely have been different absent [counsel’s] errors.” Id. at 696. 28 1 “We are particularly cautious about second-guessing counsel 2 when a plea is entered.” Hager v. Cate, 472 Fed. App’x 522, 523 3 (9th Cir. 2012) (citing Premo v. Moore, 562 U.S. 115, 131-32 4 (2011)). 5 i. Ground 2(A) 6 Manley asserts that Abood failed to advise him of the 7 consequences of the plea because he incorrectly promised Manley 8 that he could withdraw his plea if the law changed. (ECF No. 62 at 9 22). As the court previously found, the state courts concluded 10 that Abood did not promise Manley that he could withdraw his plea, 11 and their conclusion was not objectively unreasonable. 12 Manley asserts that even if Abood merely told him he would be 13 in a good position to withdraw his plea if the law changed, that 14 advice was ineffective. Any lack of legal precedent to support 15 counsel’s advice is not dispositive in the context of this case. 16 There was a very real chance – in counsel’s estimation a likely 17 chance – that Manley would be sentenced to death if he went to 18 trial. There was no guarantee that the death penalty for juveniles 19 would be overturned. The only plea agreement the State would agree 20 to was one that put Manley in prison for the rest of his life. 21 With a high chance of death and no possibility of receiving a more 22 favorable plea, there was little Abood could have done to put 23 Manley in a better position than he did. Thus, his advice that, by 24 pleading guilty to the charges agreed to in the plea agreement, 25 Manley was placed in the “best” position, was within the wide range 26 of reasonable representation. 27 Manley has not demonstrated deficient performance and is not 28 therefore entitled to relief on Ground 2(A). 1 ii. Ground 2(B) 2 Manley asserts that Abood was also ineffective for failing to 3 adequately investigate the extent of his cognitive defects. (ECF 4 No. 62 at 26). He argues that if counsel had adequately 5 investigated his psychological history and condition, he would not 6 have advised him to enter the plea. 7 Manley argues that despite Dr. Paglini’s recommendation that 8 he receive a full psychological evaluation, the only follow-up 9 evaluation he received was for intellectual functioning. Manley 10 asserts that had Abood done an adequate investigation, he would 11 have discovered that Manley had a history of depression, bipolar 12 disorder, PTSD, chronic drug abuse and physical abuse and neglect. 13 He would also have discovered, as Dr. Llorente concluded, that 14 Manley was unable to understand the consequences of pleading 15 guilty. This information, Manley argues, would have provided 16 powerful mitigation evidence to persuade the State to take the 17 death penalty off the table or to convince the jury not to impose 18 the death penalty, and would have established that Manley could 19 not have knowingly and voluntarily entered a guilty plea.5 20 Respondents argue that counsel had Manley evaluated for 21 competency -- he was found competent -- and for any psychiatric 22 conditions, and none was found. They assert that Manley has not 23 established that any further evaluations would have led to a 24
25 5 Manley did not raise this claim until his third state petition, 26 which was dismissed as procedurally barred. Respondents have not moved to dismiss the claim as procedurally defaulted, however, so 27 any procedural default defense is waived, and the court will address the claim on the merits. See Vang v. Nevada, 329 F.3d 1069, 28 1073 (9th Cir. 2003). 1 different result – , that he would have rejected the plea and 2 elected to proceed to trial. 3 When there is no “objective indication” that a defendant has 4 a mental illness or brain damage, we cannot label counsel 5 “ineffective for failing to pursue this avenue of mitigation.” 6 Earp v. Cullen, 623 F.3d 1065, 1076 (9th Cir. 2010) (quoting 7 Gonzalez v. Knowles, 515 F.3d 1006, 1015 (9th Cir. 2008)). Counsel 8 had Manley evaluated for competency and then for psychiatric issues 9 and intellectual functioning. Manley was found competent, not 10 mentally retarded, and with no indication of psychiatric issues. 11 Following Dr. Brown’s evaluation, there did not remain an objective 12 indicator that further evaluation was necessary. Counsel’s failure 13 to further pursue evaluation did not fall outside the wide range 14 of reasonable representation. 15 Further, most of what Manley argues counsel should have 16 discovered through further evaluation was in fact presented to the 17 court in the motion to dismiss the death penalty charge for a 18 mentally handicapped individual. Manley cannot therefore 19 demonstrate prejudice. 20 Manley is not entitled to relief on Ground 2(B) of the 21 petition. 22 C. Ground Four 23 In Ground Four, Manley asserts that he was denied his right 24 to conflict-free counsel because Abood could not effectively argue 25 for withdrawal of the plea without admitting to his own 26 ineffectiveness – i.e., that he made Manley a false and misleading 27 promise to induce Manley to enter the plea. (ECF No. 62 at 31-35). 28 This claim is procedurally defaulted, and the court previously 1 reserved on the question of cause and prejudice, which it will now 2 address. 3 Manley asserts cause based on the Supreme Court case of 4 Martinez v. Ryan, 566 U.S. 1 (2012). Martinez created a narrow, 5 equitable rule that allows petitioners to, in some cases, establish 6 cause for a procedural default where the failure to raise a 7 substantial claim of ineffective assistance of trial counsel in 8 initial-review collateral proceedings is due to the absence or 9 ineffective assistance of post-conviction counsel. Id. at 16-17. 10 Manley has not demonstrated that postconviction counsel 11 rendered ineffective assistance and thus has not established cause 12 for the default of Ground Four. 13 “Experienced advocates since time beyond memory have 14 emphasized the importance of winnowing out weaker arguments on 15 appeal and focusing on one central issue if possible, or at most 16 on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52 (1983). 17 Postconviction counsel raised the essence of this claim –- that 18 counsel made an improper promise –- in the state habeas petition. 19 There was no greater chance of success on a claim that Abood 20 labored under a conflict of interest because of the improper 21 promise than on the claim that the plea was invalid because of the 22 promise; both depended on the court finding that Abood had made 23 such a promise. Counsel was not therefore deficient in failing to 24 raise this claim in postconviction proceedings. For the same 25 reason, Manley cannot demonstrate prejudice. Because the state 26 courts found Abood had made no such promise, there is no reasonable 27 likelihood the courts would have found that Abood operated under 28 a conflict of interest. 1 As Manley has not demonstrated cause and prejudice for the 2 default of this claim, Ground Four will be dismissed. 3 D. Ground Five 4 In Ground Five, Manley asserts that his Eighth Amendment right 5 to be free from cruel and unusual punishment is violated by his 6 sentence of life without the possibility of parole. (ECF No. 62 at 7 36). 8 In Graham v. Florida, the Supreme Court held that a sentence 9 of life without parole imposed on a juvenile for a nonhomicide 10 offense is cruel and unusual punishment in violation of the Eighth 11 Amendment. 560 U.S. 48, 82 (2010). Later, in Miller v. Alabama, 12 the Court held that “mandatory life without parole for those under 13 the age of 18 at the time of their crimes violates the Eighth 14 Amendment’s prohibition on ‘cruel and unusual punishments.’” 567 15 U.S. 460, 465 (2012). It further made clear that “Graham’s 16 reasoning implicates any life-without-parole sentence imposed on 17 a juvenile, even as its categorical bar relates only to nonhomicide 18 offenses.” Id. at 473. Miller further held that before imposing 19 a sentence of life without the possibility of parole on a juvenile, 20 a sentencing court must “how children are different, and how those 21 differences counsel against irrevocably sentencing them to a 22 lifetime in prison.” Id. at 480. 23 In Montgomery v. Louisiana, the Supreme Court held that Miller 24 was retroactively applicable on collateral review. 577 U.S. 190 25 (2016). It also held that “Miller did bar life without parole . . 26 . for all but the rarest of juvenile offenders, those whose crimes 27 reflect permanent incorrigibility.” Id. at 209. However, the 28 Supreme Court recently made clear that sentencing courts are not 1 required to make any specific finding of permanent incorrigibility 2 or any on-the-record explanation with an implicit finding of 3 permanent incorrigibility. Jones v. Mississippi, - U.S. -, 141 S. 4 Ct. 1307, 1314-15, 1319-21 (2021). Rather, it is enough that a 5 sentencing court has the discretion to consider “an offender’s 6 youth and attendant characteristics” and the discretion to 7 sentence the offender to a term less than life without parole in 8 order to satisfy Miller. Id. at 1316-18. 9 Manley alleged in the state courts that his sentence violated 10 Miller. Manley argued that his life without parole sentence was 11 mandatory and that he never received an individualized sentencing 12 hearing at which the court considered his youth in determining his 13 sentence. 14 The Nevada Supreme Court held that there was no mandatory 15 sentencing scheme at the time Manley committed his crimes and thus 16 his sentence was not unconstitutional under Miller. (Ex. 153 at 1- 17 2). The court did not address Manley’s remaining arguments. 18 The state courts were not objectively unreasonable in finding 19 that Manley’s sentence did not violate the Eighth Amendment. 20 Neither the categorical bar of Graham nor the categorial of Miller 21 prohibits Manley’s sentence. Manley committed two murders and was 22 not sentenced pursuant to a sentencing scheme that mandated life 23 without the possibility of parole.6 See Nev. Rev. Stat. §
24 6 Manley’s argument that his sentence was mandatory because it was 25 pursuant to a binding plea agreement, and because the Nevada Supreme Court’s generally refuses to overturn sentences of life 26 without the possibility of parole, is not persuasive. A sentence that is required pursuant to a mandatory sentencing scheme is 27 fundamentally different from a sentence that Manley agreed to and which, although it would have possibly impacted the plea agreement, 28 the court could have deviated from if it had wished. There is no 1 200.030(4)(b). Moreover, Manley received a sentencing hearing at 2 which the court clearly considered his age in determining his 3 sentence. The court began by stating that Manley was lucky to get 4 the plea he did because “if the Court ever seen a crime that 5 warranted the death sentence, this would be such a crime.” (Ex. 21 6 (Tr. 18)). It then noted Manley’s abusive childhood and early drug 7 abuse before stating that “as a juvenile” Manley had received six 8 chances at Probation and had squandered them all. Because of that 9 and the heinous nature of his crimes, the court explained, Manley 10 was, at the age of 17, now facing the rest of his life behind bars. 11 Taken as a whole, the court’s statements indicate consideration of 12 the defendant’s youth prior to the court’s decision to not deviate 13 from the parties’ agreed-upon sentence. 14 As Manley’s sentence and the procedure used to arrive at it 15 complies with all relevant Supreme Court precedent, the state 16 courts’ rejection of this claim was neither contrary to, nor an 17 unreasonable determination of, clearly established federal law. 18 Manley is not entitled to relief on Ground 5 of the petition. 19 IV. Certificate of Appealability 20 In order to proceed with an appeal, Manley must receive a 21 certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. 22 P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 23 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 24 551-52 (9th Cir. 2001). Generally, a petitioner must make “a 25 substantial showing of the denial of a constitutional right” to 26
27 authority to support Manley’s assertion that appellate decisions have any bearing on the question of whether a sentence is actually, 28 or in effect, mandatory. 1 warrant a certificate of appealability. , 435 F.3d at 951; 28 2 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 3 (2000). “The petitioner must demonstrate that reasonable jurists 4 would find the district court’s assessment of the constitutional 5 claims debatable or wrong.” Allen, 435 F.3d at 951 (quoting Slack, 6 529 U.S. at 484). In order to meet this threshold inquiry, Manley 7 has the burden of demonstrating that the issues are debatable among 8 jurists of reason; that a court could resolve the issues 9 differently; or that the questions are adequate to deserve 10 encouragement to proceed further. Id. 11 The court has considered the issues raised by Manley, with 12 respect to whether they satisfy the standard for issuance of a 13 certificate of appealability and determines that none meet that 14 standard. Accordingly, Manley will be denied a certificate of 15 appealability. 16 V. Conclusion 17 In accordance with the foregoing, IT IS THEREFORE ORDERED 18 that the second amended petition for writ of habeas corpus relief 19 (ECF No. 62) is DENIED, and this action is therefore DISMISSED 20 WITH PREJUDICE. 21 / 22 / 23 / 24 / 25 / 26 / 27 / 28 / 1 IT IS FURTHER ORDERED that Manley is DENIED a certificate of 2|| appealability, for the reasons set forth above. 3 The Clerk of Court shall enter final judgment accordingly and 4|| close this case. 5 IT IS SO ORDERED. 6 DATED: This 27th day of July, 2021. 3 bora” DS tt 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28