McDaniels v. Gittere

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * * 6 HARVEY DEANDRE MCDANIELS, Case No. 3:21-cv-00005-MMD-CSD

7 Petitioner, ORDER v. 8 NDOC WARDEN GITTERE, et al., 9 Respondents. 10

11 12 I. SUMMARY 13 Respondents have answered Petitioner Harvey DeAndre McDaniels’ 28 U.S.C. § 14 2254 pro se habeas corpus petition challenging his state criminal conviction under a guilty 15 plea. (ECF No. 16.) McDaniels did not file a reply in support of his petition.1 As discussed 16 below, the petition lacks merit and will be denied. 17 II. BACKGROUND 18 In August 2017, McDaniels pleaded guilty under Alford2 to voluntary manslaughter 19 with use of a deadly weapon. (ECF No. 18-3.)3 The plea arose from an incident in which 20 McDaniels and his girlfriend were asleep in his house when a noise woke them up. (ECF 21 No. 17-1.) McDaniels picked up a gun, called out asking who was there, and then fired 22 twice at the closed bedroom door. McDaniels opened the door, went down the hallway, 23 and shot a man in his living room, asking repeatedly how he got in the house. McDaniels 24

25 1The answer was served electronically served on McDaniels at his address of record but was returned as undeliverable. (ECF No. 24.) McDaniels later updated his 26 address, and the Court directed the Clerk of Court to send him a courtesy copy of the answer. (ECF No. 30.) 27 2North Carolina v. Alford, 400 U.S. 25 (1970). 28 3Exhibits referenced in this order are exhibits to respondents’ answer (ECF No. 2 McDaniels pulled the victim out of the house; he died several weeks later from his injuries. 3 (ECF Nos. 17-1, 18-8.) 4 The guilty plea stipulated to two to five years plus a consecutive one to three years 5 for the deadly weapon enhancement. (ECF No. 25.) The plea was conditional; it provided 6 that if the court failed to follow the negotiation, McDaniels could withdraw his plea. It also 7 stated that if McDaniels failed to interview with the Department of Parole and Probation 8 (P&P), the State would have the unqualified right to argue for any legal sentence. (Id.) 9 McDaniels failed to interview with P&P. (ECF No. 18-8.) The State then argued for two 10 consecutive terms of four to ten years. The court sentenced McDaniels to two consecutive 11 terms of two to ten years. (Id.) Judgment of conviction was entered on January 24, 2018. 12 (ECF No. 18-10.) 13 The Nevada Court of Appeals affirmed his conviction in July 2019, and the Nevada 14 Supreme Court affirmed the denial of his state postconviction habeas corpus petition in 15 September 2020. (ECF Nos. 19-8, 19-23.) McDaniels dispatched his federal habeas 16 petition for mailing about December 2020. (ECF No. 5.) 17 III. LEGAL STANDARDS 18 a. AEDPA Standard of Review 19 28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty 20 Act (“AEDPA”), provides the legal standards for this Court’s consideration of the petition 21 in this case: 22 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with 23 respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ― 24 (1) resulted in a decision that was contrary to, or involved an 25 unreasonable application of, clearly 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 unreasonable 27 determination of the facts in light of the evidence presented in the State court proceeding. 28 2 applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court 3 convictions are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 4 693-694 (2002). This Court’s ability to grant a writ is limited to cases where “there is no 5 possibility fair-minded jurists could disagree that the state court’s decision conflicts with 6 [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The 7 Supreme Court has emphasized “that even a strong case for relief does not mean the 8 state court's contrary conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 9 U.S. 63, 75 (2003)); see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing 10 the AEDPA standard as “a difficult to meet and highly deferential standard for evaluating 11 state-court rulings, which demands that state-court decisions be given the benefit of the 12 doubt”) (internal quotation marks and citations omitted). 13 A state court decision is contrary to clearly established Supreme Court precedent, 14 within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts 15 the governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts 16 a set of facts that are materially indistinguishable from a decision of [the Supreme Court] 17 and nevertheless arrives at a result different from [the Supreme Court’s] precedent.” 18 Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), citing 19 Bell, 535 U.S. at 694). 20 A state court decision is an unreasonable application of clearly established 21 Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court 22 identifies the correct governing legal principle from [the Supreme Court’s] decisions but 23 unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538 U.S. 24 at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires 25 the state court decision to be more than incorrect or erroneous; the state court’s 26 application of clearly established law must be objectively unreasonable. Id. (quoting 27 Williams, 529 U.S. at 409). 28 2 “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas 3 review. See, e.g., Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause 4 requires that the federal courts “must be particularly deferential” to state court factual 5 determinations. Id. The governing standard is not satisfied by a showing merely that the 6 state court finding was “clearly erroneous.” Id. at 973. Rather, AEDPA requires 7 substantially more deference: 8 . . . [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in 9 similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal 10 standards of appellate review, could not reasonably conclude that the finding is supported by the record. 11 12 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972. 13 Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be 14 correct unless rebutted by clear and convincing evidence. The petitioner bears the burden 15 of proving by a preponderance of the evidence that he is entitled to habeas relief. See 16 Cullen, 563 U.S. at 181. 17 b. Ineffective Assistance of Counsel 18 Ineffective Assistance of Counsel (“IAC”) claims are governed by the two-part test 19 announced in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the Supreme 20 Court held that a petitioner claiming ineffective assistance of counsel has the burden of 21 demonstrating that (1) the attorney made errors so serious that he or she was not 22 functioning as the “counsel” guaranteed by the Sixth Amendment, and (2) that the 23 deficient performance prejudiced the defense. See Williams, 529 U.S. at 390-91 (citing 24 Strickland, 466 U.S. at 687). To establish ineffectiveness, the defendant must show that 25 counsel’s representation fell below an objective standard of reasonableness. See id. To 26 establish prejudice, the defendant must show that there is a reasonable probability that, 27 but for counsel’s unprofessional errors, the result of the proceeding would have been 28 different. See id. A reasonable probability is “probability sufficient to undermine 2 must be “highly deferential” and must adopt counsel’s perspective at the time of the 3 challenged conduct, in order to avoid the distorting effects of hindsight. Strickland, 466 4 U.S. at 689. It is the petitioner’s burden to overcome the presumption that counsel’s 5 actions might be considered sound trial strategy. See id. 6 Ineffective assistance of counsel under Strickland requires a showing of deficient 7 performance of counsel resulting in prejudice, “with performance being measured against 8 an objective standard of reasonableness, . . . under prevailing professional norms.” 9 Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations omitted). 10 When the ineffective assistance of counsel claim is based on a challenge to a guilty plea, 11 the Strickland prejudice prong requires a petitioner to demonstrate “that there is a 12 reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and 13 would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). 14 If the state court has already rejected an ineffective assistance claim, a federal 15 habeas court may only grant relief if that decision was contrary to, or an unreasonable 16 application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). 17 There is a strong presumption that counsel’s conduct falls within the wide range of 18 reasonable professional assistance. See id. 19 The United States Supreme Court has described federal review of a state supreme 20 court’s decision on a claim of ineffective assistance of counsel as “doubly deferential.” 21 Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). The 22 Supreme Court emphasized that “[w]e take a ‘highly deferential’ look at counsel’s 23 performance . . . through the ‘deferential lens of § 2254(d).’” Id. (internal citations omitted). 24 Moreover, federal habeas review of an ineffective assistance of counsel claim is limited 25 to the record before the state court that adjudicated the claim on the merits. See Cullen, 26 563 U.S. at 181-84. The United States Supreme Court has specifically reaffirmed the 27 extensive deference owed to a state court's decision regarding claims of ineffective 28 assistance of counsel: unreasonable under § 2254(d) is all the more difficult. The standards 2 created by Strickland and § 2254(d) are both “highly deferential,” id. at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 3 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, Knowles, 556 U.S. at 123. The Strickland standard is a general 4 one, so the range of reasonable applications is substantial. 556 U.S. at 124. Federal habeas courts must guard against the danger of equating 5 unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is whether there is any 6 reasonable argument that counsel satisfied Strickland's deferential standard. 7 8 Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance of 9 counsel must apply a ‘strong presumption’ that counsel’s representation was within the 10 ‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland, 466 11 U.S. at 689). “The question is whether an attorney’s representation amounted to 12 incompetence under prevailing professional norms, not whether it deviated from best 13 practices or most common custom.” Id. (internal quotations and citations omitted). 14 McDaniels pleaded guilty on the advice of counsel. The United States Supreme 15 Court has “strictly limited the circumstances under which a guilty plea may be attacked 16 on collateral review.” Bousley v. U.S., 523 U.S. 614, 621 (1998). A valid guilty plea is one 17 that is both knowing and voluntary. See Boykin v. Alabama, 395 U.S. 238, 242 (1969). 18 The habeas petitioner bears the burden of establishing that the plea was not knowing or 19 voluntary. See Little v. Crawford, 449 F.3d 1075, 1080 (9th Cir. 2006). To determine 20 whether a plea is valid is “whether the plea represents a voluntary and intelligent choice 21 among the alternative courses of action open to the defendant.” Hill, 474 U.S. at 56 22 (quoting Alford, 400 U.S. at 31). Where a defendant was represented by counsel during 23 the plea process, and enters a plea based on advice from counsel, the voluntariness of 24 the plea depends on whether the advice “was within the range of competence demanded 25 of attorneys in criminal cases,” not based on whether the court would retrospectively 26 consider counsel’s advice to be right or wrong. McMann v. Richardson, 397 U.S. 759, 27 771 (1970). Thus, McDaniels “may only attack the voluntary and intelligent character of 28 the guilty plea by showing that the advice he received from counsel was [ineffective] . . . 2 pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 56-57, 59; 3 Lambert v. Blodgett, 393 F.3d 943, 980-981 (9th Cir. 2004). 4 IV. INSTANT PETITION 5 a. Ground 1 6 McDaniels contends that his plea counsel was ineffective for failing to withdraw the 7 guilty plea when the state district court imposed a harsher sentence than stipulated in the 8 plea agreement. (ECF No. 5 at 16-24.) 9 Defense counsel Dan Winder acknowledged at sentencing that McDaniels had 10 failed to interview with P&P. (ECF No. 18-8 at 9-13.) But he also argued that nothing had 11 occurred to change the conditional nature of the agreement. The prosecutor contended 12 that the plea deal belied this assertion: 13 . . . if you look at the Guilty Plea Agreement, and I think counsel can agree with the State, that when we structured this negotiation, the two to 14 five with the consecutive one to three, what we were talking about it being conditional is if the Court on its own wanted to change the terms of -- 15 sentence the Defendant to a four to ten with a consecutive four to ten. That part is conditional. If you flip the page there is also on page two from line 16 four that the Defendant agrees if he fails to interview, fails to appear at any 17 subsequent case or an independent magistrate, by affidavit review, confirms probable cause against me for new criminal charges and we 18 exclude minor traffic, then the State retains the right to argue. The Defendant was canvassed about all that. In fact, the Defendant actually 19 wrote a letter to the Court talking about how he didn’t interview. So, he knew 20 he didn’t interview and he had breached one of the terms of the contract. 21 (Id. at 10.) 22 The court concluded that the plea agreement provided that it was a conditional 23 plea if the court failed to follow the negotiation, but the State was only bound by the 24 negotiation if McDaniels interviewed with P&P. (Id.) Accordingly, the court determined 25 that McDaniels was not permitted to withdraw his plea. The plea had originally stipulated 26 to a term of two to five years with a consecutive term of one to three years. No longer 27 bound by the negotiation, the State then argued for two consecutive terms of four to ten 28 2 (Id. at 36.) 3 Affirming the denial of this claim, the Nevada Supreme Court noted that defense 4 counsel had argued at sentencing that McDaniels retained the option of withdrawing his 5 plea: 6 McDaniels has not demonstrated deficient performance or prejudice. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Warden v. Lyons, 7 683 P.2d 504, 505 (1984) (adopting the test in Strickland). Counsel argued at sentencing for the withdrawal of McDaniels’ plea, and the district court 8 rejected counsel’s arguments. McDaniels has not identified what additional 9 argument counsel should have raised in a written motion and has not shown that such a motion would have been meritorious. The district court therefore 10 did not err in denying this claim without an evidentiary hearing.[FN2] See Ennis v. State, 122 Nev. 694, 706, 137 P.3d 1095, 1103 (2006) (“Trial 11 counsel need not lodge futile objections to avoid ineffective assistance of counsel claims.”). 12

13 [FN2: Insofar as McDaniels claims that he was denied his right to argue that he acted in self-defense, he waived the right to raise that defense when 14 he pleaded guilty, and that claim does not warrant relief.] 15 (ECF No. 19-23 at 3-4.) 16 The record does not support McDaniels’ claim. His counsel presented a thorough 17 argument at sentencing that his client’s failure to interview with P&P did not affect the 18 conditional nature of the guilty plea. The court considered his position and rejected it. The 19 court noted, “I think [defense counsel has] done a good job of preserving that argument 20 for appeal.” (ECF No. 18-8 at 13.) McDaniels points to no additional arguments that 21 counsel should have offered. He has failed to demonstrate that the Nevada Supreme 22 Court’s decision was contrary to or involved an unreasonable application of Strickland. 23 28 U.S.C. § 2254(d). Federal habeas relief is denied as to ground 1. 24 b. Ground 2 25 McDaniels contends that he did not enter into his plea knowingly and voluntarily 26 because he was not canvassed regarding the State regaining the right to argue for a 27 longer sentence than stipulated in the plea agreement. (ECF No. 5 at 25-31.) 28 2 The agreement provided: 3 Both parties stipulate to a sentence of two (2) to five (5) years in Nevada Department of Corrections for the Voluntary Manslaughter plus a 4 consecutive term of one (1) to three (3) years in NDOC for the Deadly Weapon Enhancement. Additionally, the State agrees not to refer the case 5 to the federal government for prosecution. Finally, this is a conditional plea, 6 if the Court fails to follow the negotiation the Defendant may withdraw his plea and proceed to trial. 7 … I understand and agree that, if I fail to interview with the Department of 8 Parole and Probation (P&P) . . . the State will have the unqualified right to argue for any legal sentence . . . . 9

10 Otherwise I am entitled to receive the benefits of these negotiations as stated in this plea agreement. 11 12 (Id. at 2-3.) 13 During the plea canvass, the state district court questioned McDaniels as to 14 whether he had read and understood the plea agreement and whether he had thoroughly 15 discussed it with counsel: 16 COURT: All right. And, Mr. McDaniels, as I said I must be satisfied that you’re doing this freely and voluntarily. Are you doing this freely and 17 voluntarily?

18 DEFENDANT: Yes, ma'am. 19 COURT: Other than what’s contained in the written plea of guilty, have 20 any promises or threats been made to induce you to enter your plea?

21 DEFENDANT: No, ma’am

22 COURT: All right. Prior to signing the written plea of guilty, did you read 23 it?

24 DEFENDANT: Yes, ma'am.

25 COURT: Did you understand everything contained in the written plea of 26 guilty?

27 DEFENDANT: Yes, ma'am.

28 the Amended Information charging you with the felony crime of voluntary 2 manslaughter with use of a deadly weapon?

3 DEFENDANT: Yes, ma'am. 4 COURT: And did you understand everything contained in that Amended 5 Information?

6 DEFENDANT: Yes, ma’am.

7 COURT: And did you have a full and ample opportunity to discuss your 8 plea of guilty as well as the charge to which you’re pleading guilty with your lawyer, Mr. Winder, and your other lawyer, Mr. Dorman? 9 DEFENDANT: Yes, ma'am. 10 COURT: Okay. And do you feel like your lawyers spent enough time with 11 you explaining everything and going over everything in your case? 12 DEFENDANT: Yes, ma'am. 13 COURT: Okay. And did your lawyers answer all your questions and 14 address all of your concerns to your satisfaction?

15 DEFENDANT: Yes, ma'am. 16 COURT: And is it your desire today to enter a plea of guilty pursuant to 17 the Alford decision wherein you will deny the facts constituting the offense but the State has the opportunity to state what facts the State would prove 18 if this matter were to proceed to trial? 19 DEFENDANT: Yes, ma'am. 20 . . . 21 MR. WINDER [defense counsel]: And, Your Honor -- and you didn’t read 22 for the record that the parties have stipulated to – 23 THE COURT: I see that. That is actually part of the record in the Guilty 24 Plea Agreement, but I will state it on the record. The parties have stipulated to a sentence to a two to five years on the voluntary manslaughter plus a 25 consecutive term of one to three years for the weapons enhancement. Both sides are going to recommend that to the Court. And you understand that 26 the matter of sentencing is still strictly up to me; do you understand that? 27 THE DEFENDANT: Yeah. 28 you understand that? 2 THE DEFENDANT: Yes, ma'am. 3

4 . . .

5 THE COURT: . . .Both sides are going to recommend that the Court give you a two to five on the voluntary manslaughter and a consecutive one to 6 three for the deadly weapon enhancement.

7 MR. WINDER: And, Your Honor, what he’s also reading is there is a line 8 that indicates that it’s conditional. That if you -- if the Court doesn’t follow –

9 THE COURT: Right. So, if we don't follow it then you could withdraw your plea – 10 THE DEFENDANT: Okay. 11

12 THE COURT: -- and that’ll be up to you.

13 THE DEFENDANT: Okay.

14 THE COURT: If you -- say the judge gave you two to five and a one to four, you may decide I want to live with that even though it’s not the 15 stipulated sentence rather than withdrawing my plea. But you would have 16 the right to withdraw your plea if you wanted to do that; do you understand that? 17 THE DEFENDANT: Yes, ma'am. 18

19 THE COURT: It’s still going to -- it would be up to you. Any questions?

20 THE DEFENDANT: No, ma’am.

21 THE COURT: All right. Thank you. . . All right. So, you got to stay out of trouble, you got to go to P and P; you got to be available for your lawyer 22 when he wants to contact you, and you have to come back to Court on the 23 date we gave you. All right. 24 (ECF No. 18-4 at 4-11.) 25 The Nevada Court of Appeals affirmed his conviction and plea: 26 McDaniels contends the district court abused its discretion by rejecting the stipulated, conditional sentence. The district court has wide discretion 27 in its sentencing decision. Chavez v. State, 125 Nev. 328, 348, 213 P.3d 476, 490 (2009). We will not interfere with a sentence imposed by the district 28 court that falls within the parameters of relevant sentencing statutes “[s]o consideration of information or accusations founded on facts supported only 2 by impalpable or highly suspect evidence.” Silks v. State, 92 Nev. 91, 94, 545 P.2d 1159, 1161 (1976). 3

4 The sentence imposed is within the parameters provided by the relevant statutes. See NRS 193.165(1); NRS 200.080. And McDaniels does not 5 allege the district court relied on impalpable or highly suspect evidence. Further, as McDaniels acknowledged that he understood during his plea 6 canvass, the district court was not bound by the plea agreement. For these reasons, we conclude the district court did not abuse its discretion by 7 sentencing McDaniels to terms in excess of those in the plea agreement. 8 9 (ECF No. 19-8 at 2-3.) 10 The Supreme Court of Nevada also concluded that the doctrine of the law of the 11 case precluded McDaniels from relitigating the claim in his state postconviction 12 proceedings: 13 Appellant Harvey Deandre McDaniels first argues that the district court should have allowed him to withdraw his guilty plea when the State argued 14 for a more severe sentence than the parties had originally stipulated. The guilty plea agreement provided that the State would be relieved of its 15 obligation to argue for the stipulated sentence if McDaniels failed to interview with the Department of Parole and Probation, as McDaniels failed 16 to do. The Court of Appeals considered and rejected this claim on direct 17 appeal. McDaniels v. State, Docket No. 75074-COA (Order of Affirmance, July 17, 2019). The doctrine of the law of the case prevents re-litigation of 18 this claim. See Hall v. State, 91 Nev. 314, 315-16, 535 P.2d 797, 798-99 (1975). The district court therefore did not err in denying this claim without 19 an evidentiary hearing. See Nika v. State, 124 Nev. 1272, 1300-01, 198 P.3d 839, 858 (2008) (providing that a petitioner is entitled to an evidentiary 20 hearing when the claims asserted are supported by specific factual 21 allegations that are not belied or repelled by the record and that, if true, would entitle the petitioner to relief). 22 23 (ECF No. 19-23 at 2-3.) 24 McDaniels is correct that the State’s regaining of the right to argue was not 25 explicitly discussed at the change of plea hearing. Still, he has not shown that he did not 26 voluntarily, knowingly, and intelligently enter into the plea agreement. When McDaniels 27 entered his plea, the court admonished, “[s]o, you got to stay out of trouble, you got to go 28 to P and P; you got to be available for your lawyer when he wants to contact you, and you 2 faced a sentence of up to eight to 20 years but was able to plead to a stipulated sentence 3 of three to eight years. Again, counsel argued at sentencing that his client’s failure to 4 interview with P&P did not affect the conditional nature of the guilty plea. But the court 5 interpreted the agreement as the State did—that McDaniels lost the right under the plea 6 deal to a conditional plea when, as stated in the agreement, he failed to interview.4 7 Notably, at sentencing, the judge opined that she did not think whether a person showed 8 up for their P&P interview had any bearing on the dangerousness of the person or the 9 safety of the community and that for that reason, she disliked that particular term in plea 10 agreements. (ECF No. 18-8 at 10-11.) The judge explained that she focused on factors 11 such as the offense, priors, and whether the person has gotten into trouble while out of 12 custody in making sentencing determinations. (Id. at 12.) McDaniels has failed to 13 demonstrate that the state appellate court decisions were contrary to or involved an 14 unreasonable application of Strickland. See 28 U.S.C. § 2254(d). The court denies relief 15 as to ground 2. 16 Therefore, the petition is denied in its entirety. 17 V. CERTIFICATE OF APPEALABILITY 18 This is a final order adverse to the petitioner. As such, Rule 11 of the Rules 19 Governing Section 2254 Cases requires this Court to issue or deny a certificate of 20 appealability (COA). Accordingly, the Court has sua sponte evaluated the claims within 21 the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. 22 Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). 23 Under 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner “has 24 made a substantial showing of the denial of a constitutional right.” With respect to claims 25 rejected on the merits, a petitioner “must demonstrate that reasonable jurists would find 26 the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. 27 4The court at sentencing also pointed out that the State regaining the right to argue 28 was meaningless if McDaniels could still withdraw his guilty plea at that point. (ECF No. 1 || McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4 2 || (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate 3 || (1) whether the petition states a valid claim of the denial of a constitutional right and (2) 4 || whether the court’s procedural ruling was correct. See id. 5 Having reviewed its determinations and rulings in adjudicating McDaniels’ petition, 6 || the Court finds that none of those rulings meet the Slack standard. The Court therefore 7 || declines to issue a certificate of appealability for its resolution of McDaniels’ petition. 8 || VI. CONCLUSION 9 It is therefore ordered that the petition (ECF No. 5) is denied. 10 It is further ordered that a certificate of appealability is denied. 11 The Clerk of Court is directed to enter judgment accordingly and close this case. 12 DATED THIS 12" Day of September 2022.

14 Lf MIRANDA M. DU 15 CHIEF UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 14