Matlean v. Williams

• Court: District Court, D. Nevada
• Decided: March 9, 2020
• Docket: 3:16-cv-00233
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT 6

DISTRICT OF NEVADA 7

8 JAMES MATLEAN, Case No. 3:16-cv-00233-HDM-CLB

9 Petitioner, v. ORDER 10

BRIAN WILLIAMS, et al., 11

Respondents. 12

13 Petitioner James Matlean has filed a habeas petition pursuant 14 to 28 U.S.C. § 2254 challenging his state court conviction, 15 pursuant to a guilty plea, of first-degree murder and conspiracy 16 to commit murder. (ECF No. 19 at 7). The second amended petition, 17 filed by counsel, is before the court for review of the merits of 18 the surviving claims. (ECF No. 19). Respondents have answered (ECF 19 No. 40), and Matlean has replied (ECF No. 44). 20 Matlean has also filed a motion for evidentiary hearing. (ECF 21 No. 45). Respondents have opposed (ECF No. 48), and Matlean has 22 replied (ECF No. 49). 23 I. Background 24 On February 21, 2008, James Matlean broke into the home of 25 Ben and Melissa Oxley, where he shot and killed Ben as he slept. 26 (ECF No. 20-7 at 8-10; ECF No. 23-26 (Tr. 29)). Although Matlean 27 also intended to kill Melissa, who was sleeping next to Ben, he 28 became afraid and left before doing so. (ECF No. 20-7 at 17). 1 At the time of the murder, Matlean was living with and dating 2 Ben’s ex-wife, Dawn. (ECF No. 23-3 (Tr. 57, 108)). Dawn was angry 3 at Ben because he had custody of their daughter. (Id. at 75, 107, 4 125). On the night of February 20, 2008, Matlean and Dawn were 5 drinking when Dawn stated she wanted Ben dead, and Matlean, in 6 response, offered to kill Ben with a shotgun. (Id. at 59-60). 7 Also present during this conversation were Dawn’s son, Devin, 8 and Devin’s friend. According to Devin, Dawn said she wanted Ben 9 dead, Matlean said he would go kill him now, and she said either 10 “I want you to go kill him” or “I want him dead now.” (Id. at 59- 11 60). Matlean said he would blow Ben away with a shotgun. (Id. at 12 61). 13 According to Matlean, Dawn solicited Ben’s murder and helped 14 him commit it. Matlean claims that Dawn drew a diagram of Ben’s 15 house, told him where to go in the house, and accompanied him to 16 the house that night. (ECF No. 20-7 at 8-10; ECF No. 23-26 at 29, 17 31-34). 18 Dawn, on the other hand, denies asking Matlean to kill Ben, 19 and instead asserts that what she really said was that she wanted 20 Ben to fall off the face of the earth, and when Matlean asked if 21 she really wanted Ben killed, she told him “no.” (ECF No. 23-3 22 (Tr. 112-14)). Dawn further denies assisting Matlean in the murder 23 or accompanying him to Ben’s house. Instead, according to Dawn, 24 she fell asleep on the couch after telling Matlean not to kill 25 Ben, only to be awoken by him some time later with the words, “It’s 26 done.” (Id. at 115). Matlean then asked Dawn to follow him to his 27 mom’s house so he could leave his truck there, which Dawn did. 28 (Id. at 116-17). 1 In April 2008, a friend of Dawn’s son, Devin, told authorities 2 who were investigating the murder that the night of February 20, 3 2008, Matlean was drunk and talking about killing Ben with a 4 shotgun. (See ECF No. 23-28 at 9). 5 In September 2008, Matlean told investigators that he 6 overheard someone talking about throwing the murder the weapon 7 into the Carson River. (Id. at 10-11). 8 In January 2009, an inmate who was in jail with Matlean told 9 investigators that Matlean had said he lied about the firearm’s 10 location and was nervous that authorities would actually find it. 11 (Id. at 11). 12 In August 2009, Dawn called the police and stated, “If I 13 confess to the murder of my ex-husband, will you put me in prison?”1 14 (ECF No. 23-3 (Tr. 147-48)). After several more interviews, Dawn 15 was granted immunity in exchange for her testimony against Matlean. 16 (See id. at 154). 17 In June 2010, Matlean was charged by way of criminal complaint 18 with first degree murder with use of a deadly weapon. (ECF No. 23- 19 2). After a two-day long preliminary examination, Matlean was bound 20 over on the charges. (ECF Nos. 23-3 & 23-4). At the arraignment 21 before Judge Gibbons, defense counsel stipulated that probable 22 cause to bind Matlean over existed based on Devin’s testimony, but 23 that Dawn’s testimony was unbelievable and insufficient to sustain 24 charges. (ECF No. 23-6 (Tr. 5)). 25 On January 28, 2011, Matlean met with investigators and gave 26 a statement confessing to the crime, but the statement was for the 27 28 1 The PSR reflects that Dawn called stating, “I can’t take it anymore. I did it. Take me to prison.” (ECF No. 23-28 at 11). 1 purposes of plea negotiations only and could not be used against 2 Matlean unless agreement was reached; the parties referred to this 3 as his “Kastigar statement” throughout the proceedings. (ECF No. 4 20-7). In December 2011, Matlean entered into a plea agreement in 5 which he agreed to plead guilty to an amended information charging 6 him with first degree murder and conspiracy to commit murder, and 7 the State agreed to recommend a sentence of life with the 8 possibility of parole after 20 years on the murder charge, with a 9 consecutive term of ten years with the possibility of parole on 10 the conspiracy charge. (ECF Nos. 23-24 & 23-25). The plea agreement 11 provided that

12 at the time of sentencing the State may present arguments, facts and/or witnesses in support of the plea 13 agreement. The State also reserves the right at sentencing to provide the Court with relevant 14 information that may not be in the Court’s possession; to call victim(s) to make victim impact statement(s); to 15 question defendant’s character witnesses; to comment on the circumstances of the crime and the defendant’s 16 criminal history, and; to correct factual misstatements made by the defendant or his/her character witnesses. 17 (ECF No. 23-25 at 2). The agreement also required Matlean to 18 provide a truthful statement about the crime and allowed the State 19 the right to withdraw from the plea agreement if that statement 20 was false. (Id. at 2-3). 21 At the change of plea hearing on December 20, 2011, Matlean 22 represented that he had read, understood and had no questions about 23 the amended information and the plea agreement, and that he had 24 gone over the whole agreement with his attorney before signing. 25 (ECF No. 23-26 (Tr. 3-5)). He represented to the court that he was 26 not pleading guilty under duress or any promises of leniency and 27 28 1 -- three times -- stated that he was not under the influence of 2 any controlled substances. (Id. at 18-20, 26). 3 Matlean indicated that he understood the three sentencing 4 options available to the court, including life without the 5 possibility of parole, and that the Division of Parole and 6 Probation would be making its own recommendation which might not 7 be the same as the parties’ agreed-upon sentence. (Id. at 13-14, 8 17). Matlean indicated he understood that victim impact statements 9 might be made during his sentencing hearing and that the State 10 would not be able to control what they said. (Id. at 11-13). 11 The State also noted, and Matlean indicated he understood, 12 that the truthfulness of Matlean’s “Kastigar statement” still had 13 to be investigated and evaluated. (Id. at 9-10, 17). 14 When asked about the facts of the crime, Matlean provided 15 several cogent and thorough answers to explain what happened that 16 night. (Id. at 30-34). He stated that although he was under the 17 influence of drugs and alcohol when he shot Ben, he had made a 18 choice to commit the murder and he knew what he was doing. (Id. at 19 35; 40-41). 20 Matlean’s attorney, Kenneth Stover, indicated to the court 21 that he and Matlean had fully gone over the potential defenses in 22 the case, including diminished capacity, but that Matlean wanted 23 to plead guilty and accept moral responsibility for the crime. 24 (Id. at 21-22; 35-37). Stover said, “I didn’t tell him to do this. 25 He told me he wanted to do this.” (Id. at 22). When asked if Mr. 26 Stover’s statements were accurate, Matlean replied “yes.” (Id.) 27 The court asked Matlean several times if he still wanted to 28 plead guilty; each time Matlean responded that he did. (Id. at 16, 1 24, 44). The court accepted the plea as having been entered freely 2 and voluntarily. 3 Sometime after the change of plea, Matlean asked Stover to 4 file a motion to withdraw the plea. (ECF No. 23-32 at 5 n.7). 5 Stover refused to do so. (Id.) Stover represented in writing and 6 in court that Matlean asked to withdraw his plea because he felt 7 that the court, in its many questions to him during the plea 8 canvass, was suggesting that he should not plead. (See id.; ECF 9 No. 23-30 (Tr. 53-54)). 10 On February 27, 2012, Matlean signed a written statement for 11 purposes of sentencing. In it, Matlean said that after murdering 12 Ben, he tried to drink his remorse away, and that “[i]f I were to 13 have gone to trial like my attorney wanted to, I had a very good 14 chance of walking away from this, but I would be walking right 15 into the hands of death. Eventually I would have killed myself one 16 way or another.” (ECF No. 23-28 at 16). He expressed deep remorse 17 and said that he wanted to take a plea in order to not put Ben’s 18 family through the traumatic events again. (Id.) 19 Sentencing took place on March 16, 2012. (ECF No. 23-30). 20 Probation recommended a life without the possibility of parole on 21 the murder charge. (ECF No. 23-28 at 15). The State asked for the 22 sentence agreed upon by the parties in their agreement. (ECF No. 23 23-30 at 57). 24 A central point of discussion at sentencing involved whether 25 Matlean had been truthful and whether his statement would be of 26 use to the prosecution in bringing charges against Dawn. (Id. at 27 40). 28 1 The topic first arose during the testimony of Ron Elges, 2 defendant’s witness who had also happened to participate in the 3 investigation of the crime. The court asked the prosecutor if he 4 would be asking Elges any questions on the usefulness of Matlean’s 5 statement. (Id. at 39). The prosecutor declined. (Id.) 6 Later, in addressing the issue, the prosecutor argued that 7 Matlean’s and Dawn’s statements were consistent in all but one 8 respect: whether Dawn went with Matlean to Ben’s or whether she 9 stayed home. And he stated: “As we sit here today, I have 10 insufficient evidence to tell you which one of them is telling the 11 truth and which one is lying. There’s arguments that could be made 12 on both sides, but there’s certainly not sufficient evidence to 13 tell you that.” (Id. at 58). The court asked if the prosecutor 14 meant that there was insufficient corroborating evidence to charge 15 Dawn, because an accomplice’s testimony alone was not enough. (Id. 16 at 59). The prosecutor agreed that’s what he meant. (Id.) 17 The prosecutor further stated that he did not want it to sound 18 as if Matlean didn’t comply with the plea agreement, because 19 Matlean did. (Id. at 59). The prosecutor also explained that Dawn 20 did not have an immunity agreement; she had an agreement to 21 cooperate and tell the truth. He stated that Dawn did cooperate 22 because she testified but that it was still an open book on whether 23 she had materially lied. (Id. at 61). The court responded: “Well, 24 you can see the dilemma this creates for the court, because someone 25 who is cooperating and truthful is a lot different than someone’s 26 whose [sic] lying and obstructing.” (Id. at 61). The prosecutor 27 responded, “Correct,” and then turned to another topic. (Id. at 28 62). 1 Stover, for his part, did follow up on the court’s inquiry by 2 asking Elges whether he believed “only half the book of justice 3 has been written in this case.” Elges responded that there were 4 two statement and it remained to be determined who was telling the 5 truth, so until the absolute truth was determined, the case was 6 not over. (Id. at 40). Stover then commented: “I’m at a loss to 7 wonder why someone would think James is lying. He’s going to prison 8 for the rest of his life. What’s he have to lie about?” (Id. at 9 40). 10 Later, Stover argued that Dawn “lied through her teeth” at 11 the preliminary hearing and pointed out several reasons her 12 testimony was suspect. (Id. at 46-47, 50-51). These reasons 13 included the fact that Dawn initially said, “I did it,” when 14 contacting authorities, although she then she changed her mind and 15 to say she didn’t. (Id. at 52). 16 Another point touched on at sentencing was Matlean’s decision 17 to plead. Stover argued that he wanted to go to trial but that 18 Matlean said he did not want to risk being found not guilty. (Id. 19 at 48). The court asked if there was any chance that Matlean might 20 be having buyer’s remorse and whether he might argue that he was 21 coerced or tricked into pleading. (Id. at 51-52). Stover responded 22 that the court’s careful plea canvass did cause Matlean to believe 23 that the court did not want him to plead guilty, but that Stover 24 explained to him that the court’s questions were only to make sure 25 that Stover was doing his job. (Id. at 53-54). 26 In his statement to the court, Matlean took responsibility 27 for his actions and stated that pleading guilty was the only thing 28 1 he could do to make amends for his crime, and that he felt truly 2 sorry for what he had done. (Id. at 78-79). 3 In pronouncing its sentence, the court stated that absent 4 Matlean’s cooperation, it would have been a very easy sentencing 5 decision, because the crime was severe, traumatic and 6 premeditated. (Id. at 79). It stated that Matlean’s cooperation 7 was a mitigating factor that made the decision more difficult. 8 (Id. at 80). Nevertheless, in the end, the court sentenced Matlean 9 to life without the possibility of parole on the murder charge, 10 with a concurrent 4-10 years on the conspiracy charge. (ECF No. 11 23-31). 12 Stover immediately filed a motion for reconsideration. (ECF 13 No. 23-32). In it, he argued, among other things, that the State 14 erroneously suggested or allowed the court to believe that Matlean 15 had not been cooperative or that his version of events could not 16 be believed. (See id.) The State opposed by arguing, primarily, 17 that the court was without jurisdiction to consider the defendant’s 18 motion. (ECF No. 23-33). In reply, counsel asked the court to 19 construe his motion as a motion to withdraw plea. (ECF No. 23-34). 20 The motion was denied. (ECF No. 23-35). In its order, the 21 court thoroughly explained the reasoning behind its sentencing 22 determination, the factors both aggravating and mitigating. (Id. 23 at 6-11). It explained that the extent of Matlean’s cooperation 24 was the most difficult factor to evaluate, as no charges had yet 25 been brought against Dawn. (Id. at 9). But it explicitly noted 26 that it made no finding as to whether Matlean was telling the truth 27 or lying. (Id. at 9-10). It pointed out that the State neither 28 implied the plea agreement was deficient nor that it should not be 1 honored. (Id. at 5). Finally, it noted that the questions it asked 2 could have only helped Matlean because the court thought the 3 recommended sentence was too lenient. (Id. at 11). 4 On appeal, the Nevada Supreme Court affirmed (ECF No. 23-40). 5 Matlean then filed a state court petition for habeas relief, and 6 counsel was appointed to assist him. (ECF Nos. 23-42 & 23-44). The 7 state court conducted an evidentiary hearing at which Matlean 8 testified. (ECF No. 23-53). During the hearing, Matlean testified 9 repeatedly that he took the plea only because his attorney promised 10 him $20,000 to do so, and also that the plea was not knowing and 11 voluntary because he was under the influence of medications and 12 did not understand what he was doing. (See id.) Although Matlean’s 13 trial counsel, Kenneth Stover, was present at the hearing, neither 14 side called him to testify. (See id.) 15 The trial court denied the petition. (ECF No. 23-54). Matlean 16 appealed. Matlean’s appellate counsel appeal filed a renewed 17 motion for evidentiary hearing in the trial court, along with a 18 motion to stay appellate proceedings, both of which were denied. 19 (ECF Nos. 23-58, 23-61, 23-65 & 23-66). In the end, the Nevada 20 Supreme Court affirmed the trial court’s decision. (ECF No. 23- 21 72). 22 Matlean thereafter initiated the instant § 2254 proceedings. 23 Several claims have been dismissed as untimely.2 The remaining 24 2 Matlean previously filed a motion for reconsideration of the court’s 25 dismissal of the claims as untimely. The motion was filed pursuant to the Ninth Circuit’s decision Ross v. Williams, 896 F.3d 958, 961 (9th 26 Cir. 2018). The court denied the motion, concluding that even under Ross, the claims were untimely. At the time of the court’s order, the Ninth 27 Circuit’s decision was pending rehearing en banc. Since that time, the 28 en banc opinion was issued. Ross, 2020 WL 878518 (9th Cir. 2020). The court has reviewed the opinion and all relevant pleadings on file in 1 claims of the second amended petition are before the court for 2 consideration on the merits and/or a determination as whether 3 Matlean has established cause and prejudice for the procedural 4 default of the claims. 5 II. Standards 6 A. Merits 7 28 U.S.C. § 2254(d) provides the legal standards for this 8 Court’s consideration of the merits of the petition in this case:

9 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State 10 court shall not be granted with respect to any claim that was adjudicated on the merits in State court 11 proceedings unless the adjudication of the claim –

12 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 13 established Federal law, as determined by the Supreme Court of the United States; or 14

(2) resulted in a decision that was based on an 15 unreasonable determination of the facts in light of the evidence presented in the State court 16 proceeding.

17 AEDPA “modified a federal habeas court’s role in reviewing 18 state prisoner applications in order to prevent federal habeas 19 ‘retrials’ and to ensure that state-court convictions are given 20 effect to the extent possible under law.” Bell v. Cone, 535 U.S. 21 685, 693-694 (2002). This court’s ability to grant a writ is 22 23 this matter and concludes that the en banc decision does not change the 24 court’s finding as to the timeliness of the claims in this case. Importantly, although the en banc court expanded the range of documents 25 attached to a petition that may be considered part of the petition for relation back purposes, it still held that facts in attached documents 26 may be considered only to the extent they relate to facts and claims asserted in the body of the petition itself. See id. at *5. As the court 27 previously noted, the petition in this case contains no claims and no 28 facts. (ECF No. 35 at 4). Accordingly, none of the attached documents may be considered for relation back purposes. 1 limited to cases where “there is no possibility fairminded jurists 2 could disagree that the state court’s decision conflicts with 3 [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 4 102 (2011). The Supreme Court has emphasized “that even a strong 5 case for relief does not mean the state court’s contrary conclusion 6 was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 7 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) 8 (describing the AEDPA standard as “a difficult to meet and highly 9 deferential standard for evaluating state-court rulings, which 10 demands that state-court decisions be given the benefit of the 11 doubt”) (internal quotation marks and citations omitted.) 12 A state court decision is contrary to clearly established 13 Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, 14 “if the state court applies a rule that contradicts the governing 15 law set forth in [the Supreme Court’s] cases” or “if the state 16 court confronts a set of facts that are materially 17 indistinguishable from a decision of [the Supreme Court] and 18 nevertheless arrives at a result different from [the Supreme 19 Court’s] precedent.” Andrade, 538 U.S. 63 (quoting Williams v. 20 Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell, 535 U.S. at 21 694). 22 A state court decision is an unreasonable application of 23 clearly established Supreme Court precedent, within the meaning of 24 28 U.S.C. § 2254(d), “if the state court identifies the correct 25 governing legal principle from [the Supreme Court’s] decisions but 26 unreasonably applies that principle to the facts of the prisoner’s 27 case.” Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). 28 The “unreasonable application” clause requires the state court 1 decision to be more than incorrect or erroneous; the state court’s 2 application of clearly established law must be objectively 3 unreasonable. Id. (quoting Williams, 529 U.S. at 409). 4 To the extent that the state court’s factual findings are 5 challenged, the “unreasonable determination of fact” clause of § 6 2254(d)(2) controls on federal habeas review. E.g., Lambert v. 7 Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires 8 that the federal courts “must be particularly deferential” to state 9 court factual determinations. Id. The governing standard is not 10 satisfied by a showing merely that the state court finding was 11 “clearly erroneous.” Id. at 973. Rather, AEDPA requires 12 substantially more deference:

13 .... [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court 14 record, it is not enough that we would reverse in similar circumstances if this were an appeal from a district 15 court decision. Rather, we must be convinced that an appellate panel, applying the normal standards of 16 appellate review, could not reasonably conclude that the finding is supported by the record. 17

18 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also 19 Lambert, 393 F.3d at 972. 20 Under 28 U.S.C. § 2254(e)(1), state court factual findings 21 are presumed to be correct unless rebutted by clear and convincing 22 evidence. The petitioner bears the burden of proving by a 23 preponderance of the evidence that he is entitled to habeas relief. 24 Cullen, 563 U.S. at 181. The state courts’ decisions on the merits 25 are entitled to deference under AEDPA and may not be disturbed 26 unless they were ones “with which no fairminded jurist could 27 agree.” Davis v. Ayala, - U.S. -, 135 S. Ct. 2187, 2208 (2015). 28 B. Procedural Default 1 A procedural default may be excused only if “a constitutional 2 violation has probably resulted in the conviction of one who is 3 actually innocent,” or if the prisoner demonstrates cause for the 4 default and prejudice resulting from it. Murray v. Carrier, 477 5 U.S. 478, 496 (1986). 6 To demonstrate cause for a procedural default, the petitioner 7 must “show that some objective factor external to the defense 8 impeded” his efforts to comply with the state procedural rule. 9 Murray, 477 U.S. at 488. For cause to exist, the external 10 impediment must have prevented the petitioner from raising the 11 claim. See McCleskey v. Zant, 499 U.S. 467, 497 (1991). 12 With respect to the prejudice prong, the petitioner bears 13 “the burden of showing not merely that the errors [complained of] 14 constituted a possibility of prejudice, but that they worked to 15 his actual and substantial disadvantage, infecting his entire 16 [proceeding] with errors of constitutional dimension.” White v. 17 Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v. 18 Frady, 456 U.S. 152, 170 (1982)). 19 III. Analysis 20 Grounds 1(B), 2, and 4 were addressed by the state courts on 21 their merits. Grounds 3(B) and 6(A) were never raised to the state 22 courts, so Matlean must demonstrate cause and prejudice before 23 obtaining any relief on those claims. 24 A. Ground 1(B) 25 In Ground 1(B), Matlean asserts that his medication regime 26 rendered him unable to enter a voluntary plea. (ECF No. 19 at 17). 27 Matlean asserts that at the time of his guilty plea, medical 28 records show he was under the influence of hydrocodone, trazadone, 1 and clonazepam. He argues that these medications can impair mental 2 and physical abilities and induce drowsiness, and that in fact he 3 was very drowsy and unaware of his surroundings when he changed 4 his plea. Matlean points to his own testimony at the evidentiary 5 hearing as support for his assertion, as well as his attorney’s 6 statement that he was too high to sign a change of plea. 7 The federal constitutional guarantee of due process of law 8 requires that a guilty plea be knowing, intelligent and voluntary. 9 Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. 10 Alabama, 395 U.S. 238, 242 (1969); United States v. Delgado–Ramos, 11 635 F.3d 1237, 1239 (9th Cir. 2011). “The voluntariness of [a 12 petitioner’s] guilty plea can be determined only by considering 13 all of the relevant circumstances surrounding it.” Brady, 397 U.S. 14 at 749. Those circumstances include “the subjective state of mind 15 of the defendant . . . .” Iaea v. Sunn, 800 F.2d 861, 866 (9th 16 Cir. 1986). 17 Addressing the “standard as to the voluntariness of guilty 18 pleas,” the Supreme Court has stated:

19 (A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any 20 commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or 21 promises to discontinue improper harassment), misrepresentation (including unfulfilled or 22 unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper 23 relationship to the prosecutor's business (e.g. bribes).

24 Brady, 397 U.S. at 755 (quoting Shelton v. United States, 246 F.2d 25 571, 572 n.2 (5th Cir. 1957) (en banc), rev’d on other grounds, 26 356 U.S. 26 (1958)); see also North Carolina v. Alford, 400 U.S. 27 25, 31 (1970) (noting that the “longstanding test for determining 28 1 the validity of a guilty plea is ‘whether the plea represents a 2 voluntary and intelligent choice among the alternative courses of 3 action open to the defendant.’”). 4 In Blackledge v. Allison, 431 U.S. 63 (1977), the Supreme 5 Court addressed the evidentiary weight of the record of a plea 6 proceeding when the plea is subsequently subject to a collateral 7 challenge. While noting that the defendant’s representations at 8 the time of his guilty plea are not “invariably insurmountable” 9 when challenging the voluntariness of his plea, the court stated 10 that, nonetheless, the defendant’s representations, as well as any 11 findings made by the judge accepting the plea, “constitute a 12 formidable barrier in any subsequent collateral proceedings” and 13 that “[s]olemn declarations in open court carry a strong 14 presumption of verity.” Blackledge, 431 U.S. at 74; see also Muth 15 v. Fondren, 676 F.3d 815, 821 (9th Cir. 2012); Little v. Crawford, 16 449 F.3d 1075, 1081 (9th Cir. 2006). 17 Finding Matlean’s plea voluntary, knowing and intelligent, 18 the trial court held:

19 The record pertaining to petitioner’s guilty plea is indicative of a plea entered knowingly and 20 voluntarily with the assistance of counsel. Statements made by counsel and petitioner during the change of plea 21 process and the sentencing hearing, consistently exude a desire by petitioner to forgo trial out of a sense of 22 remorse and with the stated purpose of not putting the victim’s family through a trial. The record supports 23 the decision to plead guilty was made against the advice of counsel. 24

Consistent with petitioner’s desire to plead 25 guilty, counsel set petitioner on a strategic course designed to place petitioner in a position at sentencing 26 to make the best argument for leniency. The first step in that process appears to have been to obtain a 27 favorable plea negotiation from the State. To that end, petitioner provided a statement to the Douglas County 28 Sheriff’s Office wherein petitioner provided details 1 involvement of petitioner’s girlfriend, Dawn Oxley.

2 Petitioner’s statement was provided to the state nearly one year before petitioner pleaded guilty. 3 Ultimately, counsel and petitioner were able to achieve favorable plea negotiations with the State. The benefits 4 of the bargain for petitioner were substantial and included abandonment of the deadly weapon enhancement 5 and recommendation from the State for a sentence of life with the possibility of parole in 20 years plus a 6 consecutive 4 to 10 year sentence.

7 Whether born out of sincerity or mere strategy to obtain leniency at sentencing, the record consistently 8 depicts petitioner as being remorseful and unwilling to put the victim’s family through a trial. The record 9 demonstrates that this was the course chosen by petitioner from a time well before the guilty plea was 10 entered up until the time judgment was pronounced. Confessions to the Douglas County Sheriff’s Office, Dr. 11 Martha Mahaffey, and the Division of Parole and Probation, Dateline and statements made at the change of 12 plea hearing, for instance, all support that this was the course chosen by petitioner. Petitioner did not make 13 any indication at the sentencing hearing that he was desirous of withdrawing the plea. 14

…. 15

Petitioner’s testimony [at the evidentiary hearing] was 16 not compelling, particularly when considered against the aforementioned record and his obvious current motivation 17 to overturn his sentence. Much of petitioner’s testimony was in direct conflict with the plea memorandum, the 18 answers petitioner gave during the change of plea hearing held on December 20, 2011, and statements made 19 at the sentencing hearing. During the course of his testimony, petitioner recognized the contradictions and 20 claimed he had been dishonest with the court during the change of plea hearing. The court finds petitioner’s 21 testimony was not credible.

22 ….

23 The record, including statements of the petitioner and counsel in the guilty plea memorandum and transcript 24 from the change of plea hearing, directly refutes that petitioner was under the influence of prescription 25 medication to a degree rendering him incompetent to enter a plea or that petitioner was otherwise confused 26 about anything. Nor did the court observe any signs of confusion or being under the influence of medications. 27 Petitioner did not list confusion or being under the influence of medication as a basis for plea withdrawal 28 when he moved to withdraw his plea post-sentencing. 1 Petitioner has not armed the court with any basis upon which to distrust the record. During petitioner’s 2 testimony, he was unable to articulate a singular issue that he was confused about. Petitioner acknowledged that 3 prior to changing his plea, he had previously gone through the process of a guilty plea in prior felony 4 proceedings resulting in felony convictions. . . . The court finds petitioner’s claim of confusion to be 5 contrived. 6 (ECF No. 23-54 at 6-8).3 On appeal, the Nevada Supreme Court held:

7 First, appellant contends that the district court erred by denying his claim that his guilty plea was not 8 voluntary because he entered it while he was under the influence of medications. Appellant stated in his guilty 9 plea agreement that he understood the consequences of pleading guilty and the rights he was giving up, despite 10 any medications he was taking. This matter was also extensively discussed during the guilty plea canvass. 11 See Crawford v. State, 117 Nev. 718, 722, 30 P.3d 1123, 1126 (2001) (“A thorough plea canvass coupled with a 12 detailed, consistent, written plea agreement supports a finding that the defendant entered the plea voluntarily, 13 knowingly, and intelligently”), overruled on other grounds by Stevenson v. State, 131 Nev., Adv. Op. 61, 14 354 P.3d 1277 (2015). And at the evidentiary hearing on his petition, appellant was unable to identify anything 15 he may have misunderstood about the proceedings and eventually admitted that he simply regretted pleading 16 guilty. Therefore, we conclude that the district court did not err in rejecting this challenge to the guilty 17 plea. 18 (ECF No. 23-72 at 1-2). 19 Preliminarily, Matlean argues that the state courts’ 20 conclusions are not entitled to deference because they did not 21 apply the appropriate standard. In fact, he argues, it is not clear 22 what standard the courts applied in resolving his claim. 23 Matlean’s argument is without merit. AEDPA review does not 24 “require citation” or even awareness of Supreme Court cases “so 25 long as neither the reasoning nor the result of the state-court 26 decision contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002). 27 Here, the state courts’ resolution of the claim depended on finding

28 3 Citation is to ECF number at the top of the page. 1 that Matlean entered his plea knowingly, voluntarily, and 2 intelligently. For all the reasons outlined by the trial court in 3 its order denying Matlean’s state court petition, Matlean made a 4 conscious, knowing, voluntary and intelligent decision to enter 5 his plea and he failed to demonstrate that the effects of any 6 medications he was taking hindered his ability to comprehend what 7 he was doing. The Nevada Supreme Court likewise concluded that 8 Matlean knew he was entering a plea, had wanted to enter a plea, 9 and had not established that he lacked the capacity to enter his 10 plea. Even if the state courts had not applied the appropriate 11 standard, which the court does not find, their findings at least 12 do not conflict with the relevant standard, so deference to their 13 decisions still applies. 14 Matlean argues that even if the state courts applied the 15 correct standard, their decision was an unreasonable application 16 of the law or an unreasonable determination of the facts. 17 Matlean argues that in denying his claim, the Nevada Supreme 18 Court’s was unreasonable in citing his written plea agreement, in 19 which he represented he was not under the influence of any 20 medications, because his medical records clearly demonstrate that 21 this representation was false. He further argues that 22 characterizing the plea canvass on this point as “extensive” was 23 unreasonable because the court asked Matlean whether he was under 24 the influence only a few times. He argues that the court’s finding 25 that he could not identify anything about the proceedings he 26 misunderstood was not reasonable because he said several times 27 during the evidentiary hearing that he was out of it and confused. 28 And finally, Matlean argues that he never admitted that he had 1 buyer’s remorse, despite the State’s attempts to trick him into 2 doing so, and that instead he steadfastly maintained he was 3 confused, rendering the Nevada Supreme Court’s contrary finding 4 unreasonable. 5 Respondents’ primary argument in opposition is that Matlean’s 6 representations at the evidentiary hearing were inconsistent with 7 both his earlier representations to the court and with his other 8 contentions during the evidentiary hearing, including his repeated 9 assertion that he opted to change his plea because his attorney 10 had promised him $20,000 to do so. Respondents argue that Matlean 11 has introduced no evidence that his medications rendered him unable 12 to enter a plea other than his own conclusory assertions. They 13 point out that although Stover was present for the state court 14 evidentiary hearing, Matlean did not call him to testify. 15 On this last point, Matlean replies that it was the State 16 that declined to call Stover during the evidentiary hearing, so 17 Matlean’s assertion that Stover stated he was too high to plead 18 remains uncontradicted. 19 None of Matlean’s contentions is persuasive. As the trial 20 court thoroughly outlined in its order denying Matlean’s state 21 court petition, Matlean’s intent to plead guilty was evident for 22 several months before ultimately changing his plea, and his 23 responses during the change of plea hearing were cogent, 24 appropriate and thorough, and did not in any way suggest that 25 Matlean did not understand the proceedings or the fact he was 26 pleading guilty. The trial court concluded that Matlean’s late- 27 raised assertion that he was under the effects of medications was 28 contrived and lack credibility based on the entirety of the record 1 and the trial court’s own observations during the change of plea. 2 The Nevada Supreme Court’s finding that Matlean’s allegations 3 lacked credibility was consistent with these findings. Matlean’s 4 assertion that his attorney stated he was too high to plead is not 5 supported by anything other than his own self-serving allegation, 6 and Matlean failed to develop any factual support for this claim 7 during the state court proceedings despite having the clear ability 8 to do so. The record fully supports the state courts’ conclusions 9 that Matlean’s plea was knowing, voluntary and intelligent. This 10 conclusion was neither an unreasonable application of the law nor 11 an unreasonable determination of fact. 12 As the state courts were not objectively unreasonable in 13 finding Matlean’s plea was knowing, voluntary, and intelligent, 14 Matlean is not entitled to relief on Ground 1(B). 15 B. Ground 2 16 In his second ground for relief, Matlean asserts that the 17 prosecutor breached the guilty plea agreement by failing to abide 18 by the spirit of the agreement. Specifically, Matlean argues that 19 the State’s misleading statements impacted Matlean’s chances of 20 receiving the parties’ agreed-upon sentence. (ECF No. 19 at 19- 21 23). 22 A defendant has a due process right to enforce the terms of 23 his plea agreement. Santobello v. New York, 404 U.S. 257, 261-62 24 (1971). The Ninth Circuit has held that plea agreements “amount 25 to, and should be interpreted as, a contract under state contract 26 law.” Kernan v. Cuero, 138 S. Ct. 4, 8 (2017); see also Buckley 27 v. Terhune, 441 F.3d 688, 694–95 (9th Cir. 2006) (quoting Ricketts 28 v. Adamson, 483 U.S. 1, 6 n. 3 (1987) (“[T]he construction and 1 interpretation of state court plea agreements ‘and the concomitant 2 obligations flowing therefrom are, within broad bounds of 3 reasonableness, matters of state law.’”)). 4 Under Nevada law, “[w]hen the State enters into a plea 5 agreement, it is held to the most meticulous standards of both 6 promise and performance with respect to both the terms and the 7 spirit of the plea bargain.” Sparks v. State, 110 P.3d 486, 487 8 (Nev. 2005) (internal quotation marks omitted). 9 A prosecutor is not required to make an “enthusiastic” 10 recommendation for an agreed-upon sentence, absent language to the 11 contrary in the plea agreement. United States v. Benchimol, 471 12 U.S. 453, 455 (1985). However, it cannot 13 superficially abide by [a] promise to recommend a 14 particular sentence while also making statements that serve no practical purpose but to advocate for a harsher 15 one. That is, the government breaches its bargain with the defendant if it purports to make the promised 16 recommendation while winking at the district court to impliedly request a different outcome. 17 United States v. Heredia, 768 F.3d 1220, 1231 (9th Cir. 2014). 18 A due process violation occurs if the State breaches the plea 19 agreement, whether or not it had any effect on the defendant’s 20 sentence. United States v. Mondragon, 228 F.3d 978, 981 (9th Cir. 21 2000) (“It is of no consequence that … the statements may have had 22 no effect upon the sentence. The harmless error rule does not apply 23 when the government breaches a plea agreement.”). 24 Matlean argues that the primary question in the trial court’s 25 mind at sentencing was whether Matlean had been truthful when he 26 gave his statement to the police, as evidenced by the several 27 questions the court asked of the prosecutor. In response, he 28 1 asserts, the prosecutor gave misleading statements or refused to 2 engage in the trial court’s line of questioning. Matlean points to 3 the following failures or misstatements by the prosecutor: 4 1. He declined the court’s explicit offer to present any 5 evidence about whether Matlean’s statement might be truthful, and 6 expressly declined to offer his own opinion about whether Matlean 7 or Dawn was telling the truth; 8 2. When the court pointed out that the prosecutor’s refusal 9 to take a side was making sentencing difficult, he agreed before 10 changing the subject; 11 3. He failed to tell the court that even the preliminary 12 hearing judge thought Dawn was “dancing around the truth” and 13 possibly solicited Ben’s murder, (ECF Nos. 23-3 (Tr. 154-55) & 23- 14 4 (Tr. 74)); 15 4. He failed to point out that when Dawn first contacted 16 police, her words reflected an obvious consciousness of guilt; 17 5. He failed to point out that the testimony of Devin, 18 Dawn’s son, could provide corroborating evidence of Dawn’s guilt; 19 6. He failed to point out that the State had charged Matlean 20 with conspiracy to murder Melissa, which must have meant the State 21 believed Dawn was guilty; 22 7. He failed to point out that Matlean’s mother had 23 submitted a letter to the State claiming to have seen Matlean with 24 Dawn in the early morning hours after the murder was committed. 25 Matlean asserts that his statement to the police was truthful 26 and that the prosecutor refused to tell the court that Matlean was 27 being truthful in contravention of the parties’ plea agreement. 28 1 The Nevada Supreme Court addressed Matlean’s claim as 2 follows:

3 [A]ppellant James Kenneth Wayne Matlean contends that the State breached the plea agreement. Specifically, 4 Matlean contends that the plea agreement required the State to make more than a bare recommendation for a 5 sentence of life with the possibility of parole and that the State explicitly repudiated the plea agreement by 6 implying that Matlean had been untruthful. We disagree. According to Matlean’s plea agreement, the State was 7 only obligated to recommend a sentence of life in prison with the possibility of parole and the State reserved 8 the right to “comment upon the circumstances of the crime” and “correct factual misstatements made by the 9 defendant.” Here, the district court solicited information from the State about whether it believed 10 Matlean’s claim that his girlfriend conspired with him to commit the murder. Matlean’s girlfriend denied any 11 role in the conspiracy. The State responded to the district court’s inquiry by stating that it was not sure 12 which person was telling the truth about the girlfriend’s role in the conspiracy. These comments were 13 within the State’s discretion to “comment upon the circumstances of the crime,” and we conclude that the 14 State did not breach its obligations under the plea agreement. 15 (ECF No. 23-40 at 1-2). 16 Matlean advances several arguments for why the state court’s 17 decision is not entitled to deference. However, reviewing the 18 record as a whole, as well as the specific failures and statements 19 of the prosecutor identified by Matlean, it is clear that the State 20 did not violate either the express terms of the plea agreement or 21 the spirit of the agreement. Because the court so concludes, it 22 is unnecessary to address Matlean’s several arguments as to why 23 the state court’s ruling is not entitled to deference. The court 24 concludes there was no breach of the plea agreement for the reasons 25 that follow. 26 The plea agreement required the State to recommend a sentence 27 with the possibility of parole and allowed it to both offer 28 1 evidence in support of the agreement “comment upon the 2 circumstances of the crime”. (ECF No. 23-25 at 2). It did not 3 require the State to do anything more. It did not require the State 4 to represent to the court that Matlean was in fact telling the 5 truth in his statement. 6 The evidence and arguments Matlean focuses on to suggest he 7 was telling the truth are hardly conclusive. The new evidence 8 submitted by his mother, a letter from her attorney stating that 9 she saw Matlean and Dawn together in the morning hours of February 10 21, 2008, is fully consistent with Dawn’s testimony that after 11 Matlean woke her up, telling her “It’s done,” she went with him to 12 his mom’s house to switch cars. (Compare ECF No. 23-34 at 7 to ECF 13 No. 23-3 (Tr. 112-17)). The remaining points are merely arguments 14 as to why Matlean should be believed over Dawn, many of which were 15 raised by defense counsel during sentencing, at prior hearings 16 before the court, and/or were included in Matlean’s PSR. 17 Previously, at arraignment, defense counsel had told the court 18 that Dawn’s testimony could not be believed. At sentencing, counsel 19 argued that Dawn lied through her teeth during the preliminary 20 hearing. He pointed out that Dawn’s own son testified that the 21 night before the murder, Dawn was ranting and raving angry at Ben, 22 and stated that she wanted him off the face of the earth. (ECF No. 23 23-30 at 46-47). He pointed out that Dawn’s first words to the 24 police were “I did it.” (Id. at 52). 25 Thus, most of the issues Matlean asserts the prosecutor should 26 have raised were in fact raised by Matlean’s own attorney. Further, 27 it is not fair to construe the prosecutor’s statements as having 28 “no practical purpose but to advocate for a harsher” sentence. 1 , 768 F.3d at 1231. Rather, the prosecutor, in direct 2 response to the court’s inquiry, advised the court that there was 3 insufficient evidence to establish whether Matlean or Dawn was 4 telling the truth. Therefore, the record reflects the prosecutor 5 did not violate the plea agreement’s express terms or its spirit. 6 Matlean is not therefore entitled to relief. 7 C. Ground 3(B) 8 In Ground 3(B), Matlean asserts that trial counsel was 9 ineffective for allowing him to plead guilty despite knowing that 10 Matlean’s medications were impairing his ability to change his 11 plea. (ECF No. 19 at 25). The court previously found this claim 12 technically exhausted but procedurally defaulted. (ECF No. 28 at 13 6-8). Matlean concedes that under the law as it stands, he cannot 14 excuse the default of this claim.4 (ECF No. 44 at 37). Accordingly, 15 Ground 3(B) will be dismissed as procedurally defaulted. 16 D. Ground Four 17 In his fourth ground for relief, Matlean asserts that trial 18 counsel was ineffective for failing to file a motion to withdraw 19 plea when Matlean asked him to do so. (ECF No. 19 at 27). 20 Ineffective assistance of counsel claims are governed by 21 Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, 22 4 The only grounds Matlean would advance to excuse the default would be 23 under Martinez v. Ryan, 566 U.S. 1 (2012). However, Matlean recognizes that Martinez applies only if the failure to raise a claim is 24 attributable to lack of or deficient performance by counsel on initial postconviction review. Here, Matlean had counsel and counsel did in 25 fact raise this claim on initial review. The claim is unexhausted because it was not raised by counsel on appellate review. Martinez does not 26 provide any exception for a default under these circumstances. Id. at 16 (declining to extend exception to “attorney errors in other kinds of 27 proceedings, including appeals from initial-review collateral 28 proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts”). 1 a petitioner must satisfy two prongs to obtain habeas relief— 2 deficient performance by counsel and prejudice. 466 U.S. at 687. 3 With respect to the performance prong, a petitioner must carry the 4 burden of demonstrating that his counsel’s performance was so 5 deficient that it fell below an “objective standard of 6 reasonableness.” Id. at 688. “‘Judicial scrutiny of counsel’s 7 performance must be highly deferential,’ and ‘a court must indulge 8 a strong presumption that counsel's conduct falls within the wide 9 range of reasonable professional assistance.’” Knowles v. 10 Mirzayance, 556 U.S. 111, 124 (2009) (citation omitted). In 11 assessing prejudice, the court “must ask if the defendant has met 12 the burden of showing that the decision reached would reasonably 13 likely have been different absent [counsel’s] errors.” Id. at 696. 14 The trial court held, in pertinent part, that Matlean had 15 suffered no prejudice as a result of his attorney’s failure to 16 file a motion to withdraw the plea because any such motion would 17 have been denied. (ECF No. 23-54 at 8-9). The Nevada Supreme Court 18 agreed, holding:

19 Third, appellant contends that the district court erred by denying his claim that counsel was ineffective 20 “because [he] . . . attempted to withdraw his guilty plea three times before sentencing but trial counsel 21 refused.” . . . . To the extent appellant argues that counsel was ineffective for failing to move to withdraw 22 his plea before sentencing, the district court concluded that the motion would not have been granted because 23 appellant was unable to articulate any valid grounds to withdraw his plea. See NRS 176.165. We agree. See Lader 24 v. Warden, 121 Nev. 682, 686, 120 P3d 1164, 1166 (2005) (giving deference to the district court’s factual 25 findings but reviewing its legal conclusions de novo). Therefore, we conclude that no relief is warranted on 26 this claim. 27 (ECF No. 23-72 at 2-3). 28 1 Matlean’s first argument is that defendants have an absolute 2 right to seek to withdraw their pleas, so counsel’s refusal to 3 file a motion to withdraw plea violates his right to effective 4 assistance of counsel whether or not the refusal resulted in any 5 prejudice. Matlean bases his argument on McCoy v. Louisiana, 138 6 S. Ct. 1500, 1508 (2018), recognizing that certain decisions, 7 including the right to decide whether to plead guilty, rest 8 entirely in the defendant’s hands, and Roe v. Flores, 528 U.S. 470 9 (2000), which holds that courts will presume prejudice if an 10 attorney fails to file a notice of appeal despite being asked to 11 do so by the defendant. While recognizing that the argument he 12 makes is not one that has been explicitly decided by the U.S. 13 Supreme court, Matlean argues that the Nevada Supreme Court’s 14 refusal to extend relevant Supreme Court precedent to recognize an 15 absolute right to seek to withdraw the plea was unreasonable. 16 “Section 2254(d)(1) provides a remedy for instances in which 17 a state court unreasonably applies [the Supreme] Court’s 18 precedent; it does not require state courts to extend that 19 precedent or license federal courts to treat the failure to do so 20 as error.” White v. Woodall, 572 U.S. 415, 426 (2014). “‘[I]f a 21 habeas court must extend a rationale before it can apply to the 22 facts at hand,’ then by definition the rationale was not ‘clearly 23 established at the time of the state-court decision.’” Id. The difference between applying a rule and extending it 24 is not always clear, but certain principles are fundamental enough that when new factual permutations 25 arise, the necessity to apply the earlier rule will be beyond doubt. The critical point is that relief is 26 available under § 2254(d)(1)’s unreasonable-application clause if, and only if, it is so obvious that a clearly 27 established rule applies to a given set of facts that there could be no fairminded disagreement on the 28 question. 1 at 427 (citations and internal punctuation omitted). Whether 2 Supreme Court case law, as it existed at the time of Matlean’s 3 sentencing, required a presumption of prejudice to apply where an 4 attorney fails to file a requested motion to withdraw plea is a 5 matter that could be debated among fairminded jurists. Thus, the 6 Nevada Supreme Court could not have been objectively unreasonable 7 in failing to extend Supreme Court case law to that context. The 8 Nevada Supreme Court’s decision therefore remains subject to 9 deferential review. 10 Matlean next argues that even if the state courts were not 11 unreasonable in requiring a finding of prejudice to succeed on 12 this claim, they did not apply the appropriate standard, so their 13 conclusion is still not entitled to deference. Specifically, 14 Matlean asserts that the state courts required him to show his 15 motion would have been granted instead of inquiring into whether 16 there was a reasonable probability that it would have been granted, 17 as required under Strickland. 18 Matlean’s argument is without merit. The state courts’ 19 conclusion that his motion would not have been granted is 20 tantamount to holding there was no reasonable probability it would 21 have been granted. The state courts applied the correct standard 22 to Matlean’s claim. 23 Turning to the merits, Matlean clearly asked his attorney at 24 least once to withdraw his plea before sentencing, as that point 25 was conceded by Mr. Stover more than once. Whether it was 26 deficient for Stover to refuse to file the motion is not a matter 27 that need be discussed, however, because the Nevada Supreme Court 28 1 resolved the claim on prejudice grounds alone, and that finding 2 was not objectively unreasonable. 3 At the time Matlean would have sought to withdraw his plea, 4 such a motion would have been granted only if the trial court found 5 it was not voluntary, knowing, or intelligent. Crawford v. State, 6 30 P.3d 1123, 1125-26 (Nev. 2001); see also Stevenson v. State, 7 354 P.3d 1277, 1280 (Nev. 2015). Given the extensive plea canvass 8 and Matlean’s actions leading up to the change of plea, it is 9 objectively reasonable to conclude that the trial court would not 10 have allowed Matlean to withdraw his plea. The trial court itself 11 noted it would not likely have granted such a motion, and this 12 conclusion is supported by the record. 13 Although Matlean asserts he would have won such a motion, his 14 arguments are not persuasive. Matlean asserts he would have won 15 a motion on all the grounds asserted in his petition, including 16 his assertion that he entered a plea only because his attorney 17 promised him $20,000 to do so. To the extent Matlean asserts that 18 a motion to withdraw plea on this basis would have been granted, 19 the state courts considered this contention explicitly in reaching 20 their holding. (See ECF No. 23-54 at 9). The state courts’ 21 conclusions were not objectively unreasonable. 22 Thus, the state courts were not objectively unreasonable in 23 finding no prejudice on account of counsel’s failure to file a 24 motion to withdraw plea. As such, Matlean is not entitled to relief 25 on his Ground Four of the petition. 26 E. Ground 6(A) 27 In Ground 6(A), Matlean asserts that trial counsel was 28 ineffective for failing to object to the prosecutor’s misleading 1 statements at sentencing and should have explained all the reasons 2 Matlean should be believed over Dawn. (ECF No. 19 at 30). He argues 3 that if counsel had done more, it is reasonably likely he would 4 have received a more beneficial sentence. (Id.) 5 As previously held by the court, this claim is procedurally 6 defaulted, and to obtain relief, Matlean must demonstrate cause 7 and prejudice. It is unnecessary to address this threshold matter, 8 however, as Matlean’s claim is without merit. 9 Matlean’s claim is, essentially, that counsel should have 10 raised all the arguments set forth in Ground Two, supra, save one,5 11 and that his failure to do so was ineffective. As previously 12 discussed, Matlean’s attorney did, in fact, raise most of the 13 arguments he asserts should have been raised. The remaining 14 arguments were not on the whole conclusive evidence that Matlean 15 told the truth. The strongest evidence – Devin’s testimony – was 16 raised by defense counsel. (ECF No. 23-30 at 46-47). Because 17 counsel raised the strongest arguments Matlean had to discredit 18 Dawn, his representation was not deficient. For the same reasons, 19 there is no reasonable probability that the outcome of the 20 proceedings would have been different had counsel raised all the 21 arguments Matlean believes should have been raised. For those 22 reasons, Matlean has failed to establish ineffective assistance of 23 counsel and is not therefore entitled to relief on Ground 6(A). 24 25 26

27 5 Matlean concedes that his attorney did not have the letter from his 28 mother before sentencing and thus could not have raised this point during the proceedings. 1 IV. Motion for Evidentiary Hearing 2 Matlean seeks an evidentiary hearing on several points. With 3 respect to all but one point, the court has resolved the petition 4 without addressing the matters sought to be developed by Matlean 5 in an evidentiary hearing, and for that reason the motion for 6 evidentiary hearing on those grounds will be denied. 7 The sole exception is Matlean’s request that he be allowed to 8 present expert testimony of the effects of the medications he was 9 taking at the time of his change of plea. Because this claim was 10 resolved by the state courts on the merits, and their findings of 11 fact were not objectively unreasonable, the court is limited to 12 considering the state court record to resolve this claim. Cullen 13 v. Pinholster, 563 U.S. 170, 181 (2011). Accordingly, an 14 evidentiary hearing is not authorized, and the motion for such 15 will be denied. 16 V. Certificate of Appealability 17 In order to proceed with an appeal, Matlean must receive a 18 certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. 19 P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 20 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 21 551-52 (9th Cir. 2001). Generally, a petitioner must make “a 22 substantial showing of the denial of a constitutional right” to 23 warrant a certificate of appealability. Allen, 435 F.3d at 951; 28 24 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 25 (2000). “The petitioner must demonstrate that reasonable jurists 26 would find the district court’s assessment of the constitutional 27 claims debatable or wrong.” Allen, 435 F.3d at 951 (quoting Slack, 28 529 U.S. at 484). In order to meet this threshold inquiry, Matlean has the burden of demonstrating that the issues are debatable among 2\|| jurists of reason; that a court could resolve the issues 3|| differently; or that the questions are adequate to deserve 4|| encouragement to proceed further. Id. 5 The court has considered the issues raised by Matlean, with 6|| respect to whether they satisfy the standard for issuance of a certificate of appealability, and determines that none meet that 8|| standard. Accordingly, Matlean will be denied a certificate of 9|| appealability. 10|| VI. Conclusion 11 In accordance with the foregoing, IT IS THEREFORE ORDERED 12|| that the second amended petition (ECF No. 19) is DENIED WITH 13|| PREJUDICE, and this action is therefore DISMISSED. 14 IT IS FURTHER ORDERED that Matlean’s motion for evidentiary 15|| hearing (ECF No. 45) igs DENIED. 16 IT IS FURTHER ORDERED that Matlean is DENIED a certificate of 17|| appealability. 18 The Clerk of Court shall enter final judgment accordingly and 19|| CLOSE this case. 20 IT IS SO ORDERED. 21 DATED: This 9th day of March, 2020. 22 93 burn S Ht fh 2A UNITED STATES DISTRICT JUDGE 25 26 27 28