Mendoza v. LeGrand

• Court: District Court, D. Nevada
• Decided: February 19, 2021
• Docket: 3:15-cv-00507
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 ARMANDO C. MENDOZA, Case No. 3:15-cv-00507-MMD-CLB

7 Petitioner, ORDER v. 8 ROBERT LEGRAND, et al., 9 Respondents. 10 11 I. SUMMARY 12 Petitioner Armando Mendoza filed a petition for writ of habeas corpus under 28 13 U.S.C. § 2254. (ECF No. 26 (“Petition”).) This matter is before the Court for adjudication 14 on the merits of the remaining grounds in the Petition. For the reasons discussed below, 15 the Court denies the Petition and denies Petitioner a certificate of appealability. 16 II. BACKGROUND 17 Petitioner was charged in the state justice court with three counts of sexual assault 18 against a child under 14 years of age, four counts of lewdness with a child under 14 years 19 of age, and one count of battery with intent to commit sexual assault on a victim under 16 20 years of age. (ECF No. 27-1.) Prior to Petitioner’s arrest, detectives from the Washoe 21 County Sheriff’s Department interviewed Petitioner.1 (See ECF No. 27-30.) Petitioner 22 drove from California to speak to the detectives. (ECF No. 27-4 at 8.) A Spanish-speaking 23 detective translated for Petitioner and the interviewing detective. 24 During the interview, Petitioner was given warnings pursuant to Miranda v. 25 Arizona, 384 U.S. 436 (1966). (ECF No. 27-30 at 8.) The Spanish-speaking detective 26 read the Miranda warnings out loud in Spanish to Petitioner and provided the written 27 Miranda warnings in Spanish for Petitioner to read. (Id. at 8, 10.) Petitioner asked the 28

1Petitioner’s interview was recorded and transcribed. The Nevada Court of Appeals noted, however, that Petitioner did not attach a transcript of the interview to his 2 stated, “[y]ou have to request one. And if you do we can’t talk. And that’s fine if that’s what 3 you want to do, that’s what you need to do.” (Id.) The translating detective stated, “[i]f you 4 want an attorney and are asking for an attorney, we cannot talk.” (Id.) The interview 5 continued. (Id.) 6 Petitioner waived a preliminary hearing and agreed to plead guilty to two counts of 7 lewdness with a child under 14 years of age. (ECF No. 27-2.) In exchange, the State 8 agreed to drop the six remaining felony charges. (ECF Nos. 27-3, 27-5.) At Petitioner’s 9 arraignment, the state district court questioned Petitioner’s counsel because the state 10 district court was “anticipating a habeas.” (ECF No. 27-4 at 6.) The state district court and 11 counsel discussed Petitioner’s interview, in pertinent part, as follows:2 12 Counsel: . . . And I can advise the Court that the statements that he made 13 to the police in the interviews were entirely consistent with what he told me when I met with him on the 27th of March. 14 The Court: All right. Did you investigate as to whether there is a reason to 15 seek to suppress the statements made?

16 Counsel: The facts going into [Petitioner’s] interview with the police were that [Petitioner] drove from California voluntarily to come and speak with the 17 police. It was pretty clear in the conversation that [Petitioner] was there willingly, voluntarily and he desired to talk to the police. 18 The Court: Did he incriminate himself in the statements? 19 Counsel: He did, your honor. 20

21 (Id. at 7-8.) Petitioner was arraigned. The state district court asked Petitioner if he 22 committed the acts alleged in each count and Petitioner affirmed that he did. (ECF No. 23 27-4 at 17.) The state district court sentenced Petitioner on each count to a maximum 24 term of life with the minimum parole possibility after ten years—all sentences to run 25 concurrently. (ECF No. 27-7.) A judgment of conviction was entered. (Id.) Petitioner did 26 not appeal. 27 2The Court makes no credibility findings or other factual findings regarding the truth 28 or falsity of evidence or statements of fact in the state court. The Court summarizes statements solely as background to the issues presented in the case, and it does not

summarize all such material. No statement of fact made in describing statements, testimony, or other evidence in the state court constitutes a finding by the Court. 2 that petition. (ECF Nos. 10-2, 27-22.) The state district court granted the State’s motion 3 and dismissed that petition. (ECF No. 10-3 at 6-10.) The Nevada Court of Appeals 4 affirmed the dismissal. (ECF No. 10-15.) Petitioner dispatched his pro se federal habeas 5 corpus petition (ECF No. 6) to this Court on October 2, 2015. The Court appointed 6 counsel, who filed a first amended petition (ECF No. 9) on April 22, 2016. Petitioner 7 sought leave to file a second amended petition and the Court granted such request. (See 8 ECF No. 17.) Petitioner filed the second amended petition on January 31, 2017. (ECF 9 No. 26.) Respondents filed a motion to dismiss (ECF No. 36), and the Court granted 10 Respondents’ motion in part, dismissing Ground 1(D) and finding Ground 3 unexhausted. 11 (ECF No. 44.) 12 In the remaining grounds, Petitioner asserts the following instances of ineffective- 13 assistance-of-counsel in violation of Petitioner’s federal constitutional rights: 14 Ground 1(a): Counsel failed to file a motion to suppress Petitioner’s statements. 15 Ground 1(b): Counsel advised Petitioner to waive a preliminary hearing. 16 Ground 1(c): Counsel represented Petitioner despite having a conflict of interest. 17 Ground 1(e): Petitioner entered a guilty plea because of ineffective- assistance- of-counsel. 18

Ground 1(f): Cumulative effect of instances of ineffective-assistance-of-counsel. 19 20 In Ground 2, Petitioner asserts that the trial court erred by preempting Petitioner’s right to 21 conflict-free counsel in violation of his rights to due process and effective-assistance-of 22 counsel. (ECF No. 26.) 23 III. LEGAL STANDARD 24 A. Review under the Antiterrorism and Effective Death Penalty Act

25 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 26 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”): 27 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect 28 unless the adjudication of the claim – 2 3 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the 4 Supreme Court of the United States; or

5 (2) resulted in a decision that was based on an unreasonable determination 6 of the facts in light of the evidence presented in the State court proceeding. 7 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established Supreme 8 Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court applies a 9 rule that contradicts the governing law set forth in [Supreme Court] cases” or “if the state 10 court confronts a set of facts that are materially indistinguishable from a decision of [the 11 Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (first quoting Williams v. 12 Taylor, 529 U.S. 362, 405-06 (2000), and then citing Bell v. Cone, 535 U.S. 685, 694 13 (2002)). A state court decision is an unreasonable application of clearly established 14 Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) “if the state court 15 identifies the correct governing legal principle from [the Supreme] Court’s decisions but 16 unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 75. “The 17 ‘unreasonable application’ clause requires the state court decision to be more than 18 incorrect or erroneous. The state court’s application of clearly established law must be 19 objectively unreasonable.” Id. 20 The Supreme Court has instructed that “[a] state court’s determination that a claim 21 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 22 on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 23 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “[E]ven a strong case 24 for relief does not mean the state court’s contrary conclusion was unreasonable.” Id. at 25 102 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 26 (2011) (internal quotation marks and citations omitted) (describing the standard as a 27 “difficult to meet” and “highly deferential standard for evaluating state-court rulings, which 28 demands that state-court decisions be given the benefit of the doubt”). 2 In Strickland, the Supreme Court propounded a two-prong test for analysis of 3 claims of ineffective assistance of counsel requiring Petitioner to demonstrate that: (1) the 4 attorney’s “representation fell below an objective standard of reasonableness[;]” and (2) 5 the attorney’s deficient performance prejudiced Petitioner such that “there is a reasonable 6 probability that, but for counsel’s unprofessional errors, the result of the proceeding would 7 have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Courts 8 considering a claim of ineffective assistance of counsel must apply a “strong presumption 9 that counsel’s conduct falls within the wide range of reasonable professional assistance.” 10 Id. at 689. It is Petitioner’s burden to show “counsel made errors so serious that counsel 11 was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.” Id. at 687. 12 Moreover, to establish prejudice under Strickland, it is not enough for Petitioner “to 13 show that the errors had some conceivable effect on the outcome of the proceeding.” Id. 14 at 693. Rather, the errors must be “so serious as to deprive the [Petitioner] of a fair trial, 15 a trial whose result is reliable.” Id. at 687. When the ineffective-assistance-of-counsel 16 claim is based on a guilty plea challenge, the Strickland prejudice prong requires 17 Petitioner to demonstrate “there is a reasonable probability that, but for counsel’s errors, 18 [Petitioner] would not have pleaded guilty and would have insisted on going to trial.” Hill 19 v. Lockhart, 474 U.S. 52, 59 (1985). 20 Under Hill, a challenge to the voluntariness of a plea may be based upon a claim 21 of ineffective assistance of counsel. As the Supreme Court observed: 22 For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the 23 error “prejudiced” [Petitioner] by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would 24 have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the 25 evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise [Petitioner] of a potential 26 affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would 27 have succeeded at trial. . . . As we explained in Strickland v. Washington, supra, these predictions of the outcome at a possible trial, where necessary, 28 particular decisionmaker.” 2

3 Id. at 59-60 (citing Strickland, 466 U.S. at 695). Where a state district court previously 4 adjudicated the claim of ineffective assistance of counsel under Strickland, establishing 5 the decision was unreasonable is especially difficult. See Harrington, 562 U.S. at 104-05. 6 In Harrington, the Supreme Court clarified that Strickland and § 2254(d) are each highly 7 deferential, and when the two apply in tandem, review is doubly so. See id. at 105; see 8 also Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal quotation marks 9 omitted) (“When a federal court reviews a state court’s Strickland determination under 10 AEDPA, both AEDPA and Strickland’s deferential standards apply; hence, the Supreme 11 Court’s description of the standard as doubly deferential.”). The Court further clarified, 12 “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were reasonable. 13 The question is whether there is any reasonable argument that counsel satisfied 14 Strickland’s deferential standard.” Harrington, 562 U.S. at 105. 15 IV. DISCUSSION 16 A. Ground 1(a) 17 Petitioner alleges that his counsel was rendered ineffective because counsel failed 18 to file a motion to suppress Petitioner’s videotaped interview with law enforcement. (ECF 19 No. 26 at 10.) Petitioner asserts that counsel should have filed a motion to suppress 20 Petitioner’s statements to law enforcement on the basis that Petitioner invoked his right 21 to counsel during the interview, and that the detectives tricked Petitioner into speaking 22 with them by assuring Petitioner that he would be free to return to his life. (Id. at 12.) The 23 Nevada Court of Appeals held: 24 Mendoza argues his counsel was ineffective for failing to file a motion to suppress Mendoza’s confession. Mendoza asserts he is illiterate, 25 uneducated, does not understand English, and counsel should have sought suppression of the confession on those bases. Mendoza fails to 26 demonstrate his counsel’s performance was deficient or resulting prejudice. Prior to entry of Mendoza’s guilty plea, the district court inquired if there 27 were any reasons for counsel to move to suppress the confession. Counsel responded that he had reviewed the interview, and Mendoza had voluntarily 28 traveled to talk with the officers and had clearly desired to talk with the police. Given those circumstances, Mendoza does not demonstrate objectively unreasonable. See Casteel v. State, 122 Nev. 356, 362, 131 2 P.3d 1, 4 (2006); Mendoza v. State, 122 Nev. 267, 276, 130 P.3d 176, 181 (2006.) 3 Moreover, Mendoza did not include a transcript of his confession in 4 the appendix before this court. As Mendoza is the appellant, is it his burden to provide this court with an adequate record for review, see McConnell v. 5 State, 125 Nev. 256 n.13, 212 P.3d 307, 316 n. 13 (2009), and thus, he fails to demonstrate there was reasonable probability of a different outcome had 6 counsel moved to suppress the confession. Therefore, the district court did not err in denying this claim without conducting an evidentiary hearing. 7 8 (ECF No. 10-15 at 3.) The Nevada Court of Appeals’ rejection of Petitioner’s claim was 9 neither contrary to nor an objectively unreasonable application of clearly established law 10 as determined by the United State Supreme Court. 11 “[T]he prosecution may not use statements, whether exculpatory or inculpatory, 12 stemming from custodial interrogation of the defendant unless it demonstrates the use of 13 procedural safeguards effective to secure the privilege against self-incrimination.” 14 Miranda v. Arizona, 384 U.S. 436, 444 (1966). Custodial interrogation “mean[s] 15 questioning initiated by law enforcement officers after a person has been taken into 16 custody or otherwise deprived of his freedom of action in any significant way.” Id. “[T]he 17 ultimate inquiry” of whether someone is in custody “is simply whether there is a formal 18 arrest or restraint on freedom of movement of the degree associated with a formal arrest.” 19 California v. Beheler, 463 U.S. 1121, 1125 (1983) (internal quotation marks omitted). 20 The United States Supreme Court reiterated the principle that the “assertion of the 21 right to counsel [is] a significant event and that once exercised by the accused, the 22 interrogation must cease until an attorney is present.” Edwards v. Arizona, 451 U.S. 477, 23 485 (1981). The Miranda-Edwards line of precedent, however, applies “only in the context 24 of custodial interrogation. If the defendant is not in custody then those decisions do not 25 apply.” Montejo v. Louisiana, 556 U.S. 778, 795 (2009); See also United States v. Hines, 26 963 F.2d 255, 256 (9th Cir. 1992). 27 The Nevada Court of Appeals reasonably determined that Petitioner failed to 28 demonstrate that his counsel was deficient for failing to file a motion to suppress 2 law enforcement was not presented to the Nevada Court of Appeals for review in 3 Petitioner’s state habeas appeal. The transcript, therefore, may not be considered in 4 reviewing the Nevada Court of Appeals’ adjudication of the claim under AEDPA. 5 Federal habeas review, instead, must be conducted based upon the record that was 6 presented to the Nevada Court of Appeals at the time of its adjudication of the claim on 7 the merits. See Cullen v. Pinholster, 563 U.S. 170, 180-87 (2011). 8 As noted by the Nevada Court of Appeals, at Petitioner’s arraignment, Petitioner’s 9 counsel represented to the state district court that counsel reviewed the transcript of the 10 interview and investigated whether there was a reason to seek to suppress Petitioner’s 11 statements to law enforcement. (ECF No. 27-4 at 7.) Counsel determined that Petitioner 12 willingly and voluntarily spoke to law enforcement based on Petitioner’s conversation with 13 the detectives and the fact that Petitioner drove himself from California to speak with the 14 detectives. (Id. at 7-8.) Counsel made the determination that Petitioner was not subject to 15 custodial interrogation based on counsel’s review of the transcript. Counsel’s decision not 16 to seek suppression of Petitioner’s statements to law enforcement does not fall “outside 17 the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. 18 “[S]trategic choices made after thorough investigation of law and facts relevant to 19 plausible options are virtually unchallengeable.” Id. 20 In order to prevail on the ineffective-assistance-of-counsel claim, Petitioner must 21 show his counsel acted deficiently and “a reasonable probability that, but for counsel’s 22 [deficiencies], the result of the proceeding would have been different.” Strickland, 466 23 U.S. at 694. The Court, however, need not “address both components of the inquiry” if 24 Petitioner “makes an insufficient showing on one.” Id. at 697. Although the Nevada Court 25 of Appeals held Petitioner failed to demonstrate both deficiency and resulting prejudice, 26 Petitioner has not sufficiently demonstrated here his counsel’s “representation fell below 27 an objective standard of reasonableness.” Id. Therefore, the Strickland inquiry need not 28 continue, and Petitioner is denied federal habeas relief for Ground 1(a). 2 In Ground 1(b), Petitioner alleges that he received ineffective-assistance-of- 3 counsel because counsel advised Petitioner to waive a preliminary hearing. (ECF No. 26 4 at 13.) Petitioner asserts that a preliminary hearing would have allowed him an 5 opportunity to test the State’s case, establish a defense, and establish the charges were 6 redundant. (Id.) In Petitioner’s state habeas appeal, the Nevada Court of Appeals held: 7 Mendoza argues his counsel was ineffective for permitting Mendoza to waive the preliminary hearing. Mendoza fails to demonstrate his counsel’s 8 performance was deficient or resulting prejudice. Mendoza waived the preliminary hearing as a result of the plea negotiations. Mendoza does not 9 identify what actions counsel should have performed differently regarding the preliminary hearing proceedings or how pursuing a preliminary hearing 10 would have altered the outcome of the proceedings. Bare claims, such as this one, are insufficient to demonstrate a petitioner is entitled to relief. See 11 Hargrove, 100 Nev. at 502-03, 686 P.2d at 225. Therefore, the district court did not err in denying this claim without conducting an evidentiary hearing. 12

13 (ECF No. 10-15 at 3-4.) The Nevada Court of Appeals’ ruling was neither contrary to nor 14 an unreasonable application of Strickland. 15 As the Nevada Court of Appeals noted, Petitioner waived the preliminary hearing 16 as a result of plea negotiations. Defense counsel, in advising a defendant whether to take 17 a plea agreement, will balance the rights that a defendant forfeits with the benefits of any 18 agreement offered. Here, Petitioner was charged with eight felony counts carrying a 19 substantial amount of prison time. (ECF No. 27-1.) Petitioner’s counsel represented to 20 the state district court that during Petitioner’s interview with the detectives, Petitioner 21 incriminated himself and the statements Petitioner made to the detectives were consistent 22 with statements Petitioner made to his counsel. (ECF No. 27-4 at 6.) 23 Moreover, Petitioner acknowledged his conduct with his sister, the mother of the 24 victim. (ECF No. 27-6 at 6.) The State represented at sentencing that it could prove that 25 “multiple incidents had occurred” based on the evidence and Petitioner’s statements. 26 (ECF No. 27-6 at 11.) In light of the evidence against Petitioner and the State’s offer to 27 dismiss six charges against him, it was not unreasonable for Petitioner’s counsel to advise 28 Petitioner to forego his preliminary hearing. The reasonableness of such a decision is 2 exculpatory evidence to demonstrate how pursuing a preliminary hearing would have 3 altered Petitioner’s decision to accept his plea agreement. Accordingly, the Nevada Court 4 of Appeals reasonably determined that Petitioner failed to demonstrate that his counsel 5 was deficient or a reasonable probability that, but for counsel’s errors, Petitioner would 6 have pleaded not guilty and insisted on going to trial. Petitioner is therefore denied federal 7 habeas relief on Ground 1(b). 8 C. Ground 1(c) 9 In Ground 1(c), Petitioner alleges that his counsel was rendered ineffective due to 10 a conflict of interest. (ECF No. 26 at 14.) Petitioner asserts that he was berated by 11 counsel, counsel called Petitioner disparaging names, and that counsel stated that 12 counsel hated working on “these type of cases.” (Id. at 15.) In Petitioner’s state habeas 13 appeal, the Nevada Court of Appeals held: 14 Mendoza argues his counsel was ineffective because counsel called him disparaging names and stated he hated working on these type of cases. 15 Mendoza fails to demonstrate prejudice for this claim. Mendoza received a substantial bargain by entering a guilty plea. Mendoza was originally 16 charged with eight felonies and had made incriminating statements to the police. The State agreed to reduce the charges to only two felonies in 17 exchange for Mendoza’s guilty plea. In addition, Mendoza stated in his petition that he did not learn of the meaning of counsel’s statements until a 18 fellow prisoner translated them for him at a later date. Accordingly, Mendoza fails to demonstrate these alleged statements had any bearing upon his 19 decision to plead guilty. Thus, Mendoza fails to demonstrate a reasonable probability he would have refused to plead guilty and would have insisted 20 on going to trial had counsel not uttered those alleged statements. 21 Therefore, the district court did not err in denying this claim without conducting an evidentiary hearing. 22

23 (ECF No. 10-15 at 4.) The Nevada Court of Appeals’ ruling was neither contrary to nor an 24 unreasonable application of clearly established law as determined by the Supreme Court 25 of the United States. 26 An error by counsel, even if professionally unreasonable, does not warrant setting 27 aside the judgment of a criminal proceeding if the error had no effect on the judgment. 28 See Strickland, 466 U.S. at 691. An exception to the Strickland prejudice requirement 2 constructively denied. Id. at 692. “[A] similar, though more limited, presumption of 3 prejudice” applies to an ineffectiveness claim predicated on counsel’s actual conflict of 4 interest. Id. (citing Cuyler v. Sullivan, 446 U.S. 335, 345-50 (1980)). 5 Although Petitioner alleges that counsel called Petitioner disparaging names and 6 stated that counsel hated working on “these type of cases,” Petitioner did not specifically 7 allege counsel’s statements should be considered an actual conflict of interest in 8 Petitioner’s state habeas case. Nonetheless, the Nevada Court of Appeals evaluated 9 Petitioner’s claim under the general test for ineffectiveness claims under Strickland, rather 10 than under Sullivan’s conflict rubric as argued by Petitioner in his reply. (ECF No. 56 at 11 19-24.) The United States Supreme Court has not addressed a claim alleging ineffective 12 assistance of counsel predicated on disparaging statements from counsel causing a 13 conflict of interest. Where the controlling law is uncertain, a state court may reasonably 14 choose one possible legal standard over another. See Knowles v. Mirzayance, 556 U.S. 15 111, 122 (2009) (internal quotations omitted) (“[I]t is not an unreasonable application of 16 clearly established Federal law for a state court to decline to apply a specific legal rule 17 that has not been squarely established by this Court.”). 18 The Nevada Court of Appeals reasonably determined that Petitioner failed to 19 demonstrate prejudice under Strickland. To obtain relief on this type of claim, “[P]etitioner 20 must convince the court that a decision to reject the plea bargain would have been rational 21 under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010). In exchange for 22 Petitioner’s guilty plea, the State agreed to drop six separate felony charges carrying 23 substantial prison sentences. (ECF No. 27-5.) If Petitioner rejected the plea agreement 24 and proceeded to trial, Petitioner would have faced six additional felony charges and 25 would not have gained the benefit of reduced exposure at sentencing. 26 Petitioner failed to demonstrate that, but for counsel’s alleged statements, 27 Petitioner would not have pled guilty and would have insisted on going to trial. Petitioner 28 stated that he did not understand counsel’s alleged statements until a fellow inmate 2 representation, the Nevada Court of Appeals determined that Petitioner failed to 3 demonstrate counsel’s alleged statements had any bearing on Petitioner’s decision to 4 plead guilty. The Nevada Court of Appeals reasonably found Petitioner failed to 5 demonstrate a reasonable probability that counsel’s alleged statements and conduct 6 would cause a rational defendant in Petitioner’s situation to plead not guilty and proceed 7 to trial. See Hill, 474 U.S. at 59-60. Petitioner is therefore denied federal habeas relief for 8 Ground 1(c). 9 D. Grounds 1(e) and 1(f) 10 In Ground 1(e), Petitioner alleges that he entered a guilty plea only due to the 11 ineffective assistance of his trial counsel. (ECF No. 26 at 17.) Petitioner asserts that the 12 ineffective assistance alleged in Grounds 1(a), 1(b), and 1(c) led him to enter a guilty plea 13 that was not knowing, voluntary, or intelligent. (Id.) In Ground 1(f), Petitioner alleges that 14 he was deprived of his right to effective assistance of counsel due to the cumulative effect 15 of counsel’s errors. (Id. at 18.) The Nevada Court of Appeals held: 16 Mendoza argues the cumulative effect of ineffective assistance of counsel warrants vacating his judgment of conviction. Mendoza fails to demonstrate 17 any errors, even if considered cumulatively, amount to ineffective assistance of counsel sufficient to warrant vacating the judgment of 18 conviction. Therefore, he fails to demonstrate that he was entitled to relief for this claim. 19 20 (ECF No. 10-15 at 4-5.) 21 Petitioner has failed to meet his burden of proving the Nevada Court of Appeals’ 22 ruling was either contrary to or an unreasonable application of clearly established law as 23 determined by the United States Supreme Court. In light of the Nevada Court of Appeals’ 24 reasonable determination that Petitioner had not shown counsel rendered ineffective 25 assistance of counsel, it was reasonable in finding that there was no cumulative error. 26 Accordingly, the Court will deny habeas relief as to Grounds 1(e) and 1(f). 27 /// 28 /// 2 In Ground 2, Petitioner argues that the state district court erred in conducting a 3 colloquy with counsel at Petitioner’s arraignment. (ECF No. 26 at 18.) Petitioner asserts 4 the state district court “subverted the habeas process by asking a series of unchallenged 5 questions of trial counsel to prove at the arraignment that [Petitioner] received effective 6 representation.” (ECF No. 56 at 27.) Respondents argue that Ground 2 is procedurally 7 defaulted because Petitioner presented this claim in Petitioner’s state habeas appeal to 8 the Nevada Court of Appeals for the first time in his state postconviction action, and 9 because NRS § 34.810 is an independent and adequate bar to review. (ECF No. 52 at 9- 10 10.) Respondents also argue that Ground 2 is precluded from federal habeas relief under 11 Tollett v. Henderson, 411 U.S. 258 (1973).3 The Nevada Court of Appeals held: 12 Mendoza argues that trial court erred by questioning counsel at the arraignment regarding counsel’s representation of Mendoza. This claim 13 was not based on an allegation that Mendoza’s guilty plea was involuntarily or unknowingly entered or that his plea was entered without effective 14 assistance of counsel. Therefore, this claim was not permissible in a post- conviction petition for writ of habeas corpus stemming from a guilty plea. 15 See NRS 34.810(1)(a). Accordingly, the district court did not err in denying this claim. 16 17 (ECF No. 10-15 at 5.) NRS § 34.810(1)(a) states, in relevant part: 18 1. The court shall dismiss a petition if the court determines that: 19 (a) The petitioner’s conviction was upon a plea of guilty or guilty but mentally ill and the petition is not based upon an allegation that 20 the plea was not involuntarily or unknowingly entered or that the plea was entered without effective assistance of counsel. 21

22 /// 23

24 3The contention that NRS § 34.810(1)(a) creates a state law procedural bar is plausibly subject to the argument that NRS § 34.810(1)(a) merely codifies the substantive 25 ruling of Tollett in that, “[w]hen a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise 26 independent claims relating to the deprivation of constitutional rights that occurred prior 27 to the entry of the guilty plea.” 411 U.S. at 267. The parties, however, did not brief such issue and the Court, therefore, proceeds on the contention that NRS § 34.810(1)(a) 28 constitutes a state law procedural bar. See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1576 (2020) (holding that federal courts rely on the parties to frame the issues for decision). 2 claim to the state courts but the courts disposed of the claim on procedural grounds, 3 instead of on the merits. A federal court will not review a claim for habeas corpus relief if 4 the decision of the state court regarding that claim rested on a state law ground that is 5 independent of the federal question and adequate to support the judgment. See Coleman 6 v. Thompson, 501 U.S. 722, 730-31 (1991). The state law ground may be a substantive 7 rule dispositive of the case, or a procedural barrier to adjudication of the claim on the 8 merits. See Walker v. Martin, 562 U.S. 307, 315 (2011) (citing Wainwright v. Sykes, 433 9 U.S. 72, 81-82 (1977)). 10 For a state procedural rule to be “independent,” the state law ground for decision 11 must not be “interwoven with the federal law.” Michigan v. Long, 463 U.S. 1032, 1040 12 (1983). A state law ground is so interwoven if “the state has made application of the 13 procedural bar depend on an antecedent ruling on federal law [such as] the determination 14 of whether federal constitutional error has been committed.” Ake v. Oklahoma, 470 U.S. 15 68, 75 (1985). To qualify as an “adequate” procedural ground, a state rule must be “firmly 16 established and regularly followed.” Beard v. Kindler, 558 U.S. 53, 60-61 (2009). 17 In Bennett v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003), the Ninth Circuit Court 18 of Appeals announced a burden-shifting test for analyzing adequacy. Under Bennett, the 19 state carries the initial burden of adequately pleading “the existence of an independent 20 and adequate state procedural ground as an affirmative defense.” Id. at 586. This burden 21 shifts to the petitioner “to place that defense in issue,” which the petitioner may do “by 22 asserting specific factual allegations that demonstrate the inadequacy of the state 23 procedure, including citation to authority demonstrating inconsistent application of the 24 rule.” Id. Assuming petitioner has met his or her burden, “the ultimate burden” of proving 25 the adequacy of the state bar rests with the state, which must demonstrate “that the state 26 procedural rule has been regularly and consistently applied in habeas actions.” Id. 27 Here, Respondents adequately plead that the Nevada Court of Appeals refused to 28 hear Ground 2 under NRS § 34.810(1)(a) and that NRS § 34.810 is an independent and 2 his burden of placing NRS § 34.810(1)(a) in issue as required by Bennett. The Court 3 therefore finds that the Nevada Court of Appeals’ reliance on that rule is adequate to bar 4 federal review. 5 To overcome a claim that was procedural defaulted in state court, a petitioner must 6 establish either (1) cause for the default and prejudice attributable thereto or (2) that 7 failure to consider the defaulted claims will result in a “fundamental miscarriage of 8 justice.” Harris v. Reed, 489 U.S. 255, 262 (1989). To prove a “fundamental miscarriage 9 of justice,” a petitioner must show that the constitutional error of which he or she 10 complains “has probably resulted in the conviction of one who is actually 11 innocent.” Bousley v. United States, 523 U.S. 614, 623 (1998) (citing Murray v. 12 Carrier, 477 U.S. 478, 496 (1986)). “Actual innocence” is established when, in light of all 13 of the evidence, “it is more likely than not that no reasonable juror would have convicted 14 [the petitioner].” Id. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)). 15 “‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” Id. See also 16 Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008). 17 Petitioner alleges that counsel’s conflict of interest that prevented Petitioner from 18 raising the claim on direct appeal amounts to a fundamental miscarriage of justice. As the 19 Court held in its previous order granting in part and denying in part Respondents’ motion 20 to dismiss, Petitioner has not made a showing that Petitioner is actually innocent. (See 21 ECF No. 44 at 7.) Petitioner therefore has not demonstrated that the Court’s failure to 22 consider the procedurally defaulted claim will result in a fundamental miscarriage of 23 justice. Accordingly, the Court finds the claim raised in Ground 2 was procedurally 24 defaulted in state court, and Petitioner has failed to show a fundamental miscarriage of 25 justice or cause and prejudice to excuse the procedural default. As such, Ground 2 is 26 barred from review by the Court and is dismissed. 27 Under de novo review, the Court finds that Petitioner is precluded from federal 28 habeas relief as to Ground 2 under Tollett. “When a criminal defendant has solemnly 1 || admitted in open court that he is in fact guilty of the offense with which he is charged, he 2 || ...may only attack the voluntary and intelligent character of the guilty plea by showing 3 || that the advice he received from counsel was not within the [constitutional] standards 4 || [established for effective assistance of counsel.]” Tollett, 411 U.S. at 267. Accordingly, 5 || Ground 2 does not provide a basis for federal habeas relief. 6 || V. CERTIFICATE OF APPEALABILITY 7 This is a final order adverse to Petitioner. Rule 11 of the Rules Governing Section 8 || 2254 Cases requires the Court to issue or deny a certificate of appealability (“COA”). The 9 || Court has therefore sua sponte evaluated the claims within the Petition for suitability for 10 || the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864- 11 || 65 (9th Cir. 2002). Pursuant to § 2253(c)(2), a COA may issue only when the petitioner 12 || “has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 13 || 2253(c)(2). With respect to claims rejected on the merits, a petitioner “must demonstrate 14 || that reasonable jurists would find the district court's assessment of the constitutional 15 || claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot 16 || v. Estelle, 463 U.S. 880, 893, n.4 (1983)). Applying this standard, the Court finds a 17 || certificate of appealability is unwarranted. 18 || VI. CONCLUSION 19 It is therefore ordered that Petitioner's writ of habeas corpus (ECF No. 26) is 20 || denied. 21 It is further ordered that a certificate of appealability is denied. 22 The Clerk of Court is directed to enter judgment accordingly and close this case. 23 DATED THIS 19" Day of February 2021. 24

LN 26 MIRANDA M. DU 57 CHIEF UNITED STATES DISTRICT JUDGE 28