Page v. Northern Nev. Cor. Center

• Court: District Court, D. Nevada
• Decided: August 22, 2019
• Docket: 3:16-cv-00600
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 DANIEL PAGE, Case No. 3:16-cv-00600-MMD-WGC

7 Petitioner, ORDER v. 8

9 RENEE BAKER, et al.,

10 Respondents. 11 I. SUMMARY 12 This petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, filed by Daniel 13 Page, is before the Court for adjudication of the merits of Page’s remaining claims. As 14 further explained below, the Court will deny Page’s habeas petition, will deny him a 15 certificate of appealability, and will direct the Clerk of Court to enter judgment accordingly. 16 II. BACKGROUND 17 A criminal complaint was filed in Justice Court, North Las Vegas Township, Clark 18 County, Nevada on November 10, 2010, charging Page with four counts of sexual assault 19 with a minor under fourteen years of age and one count of use of a minor in producing 20 pornography. (ECF No. 17-3.) Page waived his preliminary hearing on March 15, 2011. 21 (ECF No. 17-4.) A criminal information was filed in Nevada’s Eighth Judicial District Court, 22 Clark County, Nevada on March 24, 2011, charging Page with one count of sexual assault 23 and one count of use of minor in producing pornography. (ECF No. 17-5.) Page signed a 24 guilty plea agreement on March 25, 2011. (ECF No. 17-6.) Page was arraigned on March 25 25, 2011, by Hearing Master Melisa De La Garza and entered a guilty plea. (ECF No. 17- 26 7.) 27 Page filed a motion to withdraw his plea on April 8, 2011. (ECF No. 17-8.) The 1 hearing were held on Page’s motion. (ECF Nos. 17-11, 17-13, 17-16.) District Court 2 Judge Valerie Adair denied Page’s motion to withdraw his guilty plea. (ECF No. 17-12; 3 see also ECF Nos. 17-17 at 2, 17-18.) 4 Page was sentenced to two consecutive terms of life in prison, with the possibility 5 of parole after ten years on each. (ECF No. 17-22.) Page appealed, and the Nevada 6 Supreme Court affirmed his conviction on September 13, 2012. (ECF No. 18-1.) 7 On January 16, 2013, Page filed a pro se habeas petition in state court. (ECF No. 8 18-3.) The state district court appointed counsel, and, with counsel, Page filed an 9 amended petition. (ECF No. 18-7 at 2-15.) The State opposed the petition, and Page filed 10 a reply. (ECF Nos. 18-9, 18-10.) The court held an evidentiary hearing, and, on November 11 24, 2014, denied Page’s petition. (ECF Nos. 18-11, 19.) Page appealed, and the Nevada 12 Court of Appeals affirmed the denial of his petition on November 19, 2015. (ECF No. 19- 13 6.) 14 Page initiated this federal habeas corpus action, pro se, on October 17, 2016. 15 (ECF No. 6.) On November 30, 2016, the Court granted Page’s motion for appointment 16 of counsel. (ECF No. 5.) Counsel appeared for Page on December 14, 2016, and, with 17 counsel, Page filed an amended petition on August 2, 2017. (ECF Nos. 9, 16.) 18 Page’s amended petition asserted two grounds for relief. In Ground 1, Page claims 19 his federal constitutional rights were violated because “[t]he trial court erred by denying 20 [his] pre-sentence motion to withdraw his guilty plea as said plea was not knowingly, freely 21 and voluntarily given.” (ECF No. 16 at 8.) In Ground 2, Page claims that he “received 22 ineffective assistance of counsel where counsel failed to adequately investigate [his] 23 medical condition prior to entering his plea.” (Id. at 11.) 24 On September 28, 2017, Respondents filed their motion to dismiss (ECF No. 25), 25 in which they contended that both claims in Page’s amended petition were barred by the 26 statute of limitations. The Court granted Respondents’ motion to dismiss in part, and 27 denied it in part, on July 12, 2018. (ECF No. 28.) Specifically, the claim in Ground 1 of the 1 because he only learned after his plea that the victim and her father received messages, 2 apparently from another person, after he was incarcerated, was dismissed. (Id.) In all 3 other respects, he Court denied the motion to dismiss. (Id.) 4 On September 5, 2018, Respondents filed an answer to the amended habeas 5 petition responding to Page’s remaining claims. (ECF No. 29.) Page filed a reply on 6 February 4, 2019. (ECF No. 34.) 7 III. LEGAL STANDARD 8 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in 9 habeas corpus cases under the Antiterrorism and Effective Death Penalty Act 10 (“AEDPA”): 11 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 12 respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -- 13

(1) resulted in a decision that was contrary to, or involved an 14 unreasonable application of, clearly established Federal law, as 15 determined by the Supreme Court of the United States; or

16 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 17 State court proceeding. 18 19 A state court decision is contrary to clearly established Supreme Court precedent, within 20 the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the 21 governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts a 22 set of facts that are materially indistinguishable from a decision of [the Supreme] Court.” 23 Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 24 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision 25 is an unreasonable application of clearly established Supreme Court precedent within 26 the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing 27 legal principle from [the Supreme] Court’s decisions but unreasonably applies that 1 “The ‘unreasonable application’ clause requires the state court decision to be more than 2 incorrect or erroneous. The state court’s application of clearly established law must be 3 objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) (internal citation 4 omitted). 5 The Supreme Court has instructed that “[a] state court’s determination that a claim 6 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 7 on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 8 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court 9 has stated “that even a strong case for relief does not mean the state court’s contrary 10 conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen 11 v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult to meet” 12 and “highly deferential standard for evaluating state-court rulings, which demands that 13 state-court decisions be given the benefit of the doubt” (internal quotation marks and 14 citations omitted)). 15 IV. DISCUSSION 16 A. Ground 1 17 In Ground 1, Page claims that his federal constitutional rights were violated 18 because the trial court erroneously denied his motion to withdraw his plea.1 (ECF No. 16 19 at 8.) Page argues that he was taking medication for a nervous condition, and as such, 20 he did not understand the consequences of his plea. (Id. at 10-11.) Page points out that 21 a combination of the two drugs he was taking, Paxil and Vistaril, can cause difficulty 22 concentrating and confusion. (ECF No. 34 at 8.) Respondents assert that Page 23 acknowledged that he was not under the influence of any drug that would impair his ability 24

1In the order entered July 12, 2018 resolving the motion to dismiss (ECF No. 28), 25 the Court found that the first part of this ground—the claim that Page’s plea was not 26 knowing and voluntary because he learned only after his plea that the victim and her father received messages, apparently from another person, after Page was 27 incarcerated—was barred by the statute of limitations. Accordingly, only the remainder of 1 to understand his plea agreement, and the state district court conducted a plea canvas 2 prior to accepting his plea to determine that Page entered a knowing and voluntary plea. 3 (ECF No. 29 at 5.) 4 This ground was raised on appeal in Page’s state habeas action. (ECF No. 19-3 5 at 12 (“When Mr. Page entered his guilty plea, he was under the influence of mind-altering 6 medications, rendering him unable to fully appreciate the consequences of his actions.”).) 7 The state courts determined that “[n]othing in the plea canvas suggests that [Page] was 8 impaired and [Page] acknowledged in his guilty plea agreement that he was not under 9 the influence of any substance or drug that impaired his ability to understand the 10 agreement or the guilty plea proceedings.” (ECF Nos. 18-1 at 2; 19-6 at 2-3.) The Court 11 finds that the rulings of the state courts were reasonable. 12 The federal constitutional guarantee of due process of law requires that a guilty 13 plea be knowing, intelligent, and voluntary. See Brady v. United States, 397 U.S. 742, 14 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969); United States v. Delgado- 15 Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011). “The voluntariness of [a petitioner’s] plea 16 can be determined only by considering all of the relevant circumstances surrounding it.” 17 Brady, 397 U.S. at 749. Those circumstances include “the subjective state of mind of the 18 defendant.” Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986). Addressing the “standard as 19 to the voluntariness of guilty pleas,” the Supreme Court has stated:

20 (A) plea of guilty entered by one fully aware of the direct 21 consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by 22 threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps 23 by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes). 24 25 Brady, 397 U.S. at 755 (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 26 1957), rev’d on other grounds, 356 U.S. 26 (1958)); see also North Carolina v. Alford, 400 27 U.S. 25, 31 (1970) (noting that the longstanding “test for determining the validity of guilty 1 pleas” is “whether the plea represents a voluntary and intelligent choice among the 2 alternative courses of action open to the defendant”). 3 In Blackledge v. Allison, the Supreme Court addressed the evidentiary weight of 4 the record of a plea proceeding when the plea is subsequently subject to a collateral 5 challenge. See 431 U.S. 63 (1977). While noting that “the barrier of the plea . . . 6 proceeding record . . . is not invariably insurmountable” when challenging the 7 voluntariness of his plea, the Court stated that, nonetheless, the defendant’s 8 representations, “as well as any findings made by the judge accepting the plea, constitute 9 a formidable barrier in any subsequent collateral proceedings” and that “[s]olemn 10 declarations in open court carry a strong presumption of verity.” Id. at 74; see also Muth 11 v. Fondren, 676 F.3d 815, 821 (9th Cir. 2012) (“Petitioner’s statements at the plea 12 colloquy carry a strong presumption of truth.”); Little v. Crawford, 449 F.3d 1075, 1081 13 (9th Cir. 2006). 14 With regard to competency, a criminal defendant may not plead guilty unless he 15 does so competently and intelligently. See Godinez v. Moran, 509 U.S. 389, 396 (1993). 16 In order to meet the competency standard to plead guilty, it must be determined “whether 17 the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable 18 degree of rational understanding’ and a ‘rational as well as factual understanding of the 19 proceedings against him.’” Id. (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)). 20 Prior to his arraignment, Page received two medical progress notes while in jail. 21 (ECF Nos. 21-1 (sealed), 21-2 (sealed).) On December 16, 2010, it was reported that 22 Page was feeling anxious and exhibited severe hand tremors. (ECF No. 21-1 (sealed)) at 23 1.) And on February 25, 2011, it was reported that Page was feeling okay, had no 24 complaints, and that his medications for his anxiety were working fine with no reported 25 side effects. (ECF No. 21-2 (sealed) at 1.) 26 During his arraignment on March 25, 2011, Page stated his name, age, education 27 level, and his ability to read, write, and understand the English language. (ECF No 17-7 1 that each charge carries, that he will be subject to lifetime supervision, that he will be 2 required to register as a sex offender, that sentencing is up to the court, and that by 3 pleading guilty he was giving up his Constitutional rights listed in the plea agreement. (Id. 4 at 3-5.) Page stated that he was not forced to plead guilty, that he was pleading guilty of 5 his own free will, that he read and understood the plea agreement, that his attorney was 6 available to answer any questions about the plea agreement, that he discussed his case 7 and his rights with his attorney, that he signed the plea agreement freely and voluntarily, 8 and that he did not have any questions regarding his rights or the plea negotiation. (Id. at 9 3-5.) Finally, Page also admitted to the facts alleged in the criminal information. (Id. at 5.) 10 Thereafter, the judge “accept[ed his] pleas of guilt as being freely and voluntarily entered 11 into.” (Id.) 12 Page’s signed Guilty Plea Agreement provides he was “signing th[e] agreement 13 voluntarily, after consultation with [his] attorney, and [he was] not acting under duress or 14 coercion or by virtue of any promises of leniency, except for those set forth in th[e] 15 agreement.” (ECF No. 17-6 at 5.) The Guilty Plea Agreement also provides that Page 16 was “not now under the influence of any intoxicating liquor, a controlled substance or 17 other drug which would in any manner impair [his] ability to comprehend or understand 18 th[e] agreement or the proceedings surrounding [his] entry of th[e] plea.” (Id.) 19 Fourteen days after his arraignment and the signing of his Guilty Plea Agreement, 20 Page filed a motion to withdraw his plea. (ECF No. 17-8.) A hearing was held on Page’s 21 motion on April 21, 2011. (ECF No. 17-11.) During the hearing, the judge indicated that 22 Page and his counsel were welcome to follow up on the medication issue but that the 23 motion to withdraw his plea would be denied with regard to the emails that were sent to 24 the victim during Page’s incarceration. (Id. at 5-7.) 25 A status check was held on May 19, 2011. (ECF No. 17-13.) At the status check, 26 Page’s counsel indicated that he obtained Page’s medical records from the detention 27 center “showing that Mr. Page had been under a physician’s care and had been taking 1 center and even before that.” (Id. at 2.) Following the status check, the State filed an ex 2 parte motion for the release of Page’s medical records. (ECF No. 17-14.) The ex parte 3 motion was granted. (ECF No. 17-15.) 4 An evidentiary hearing was held on August 1, 2011. (ECF No. 17-16.) Mayra 5 Carpenter, an employee of Parole and Probation, testified at the evidentiary hearing. (Id. 6 at 23.) Ms. Carpenter interviewed Page and wrote his presentence investigation report. 7 (Id.) She testified that she did not have any problems communicating with Page at that 8 interview and that he told her that “he had some anxiety issues that every 90 days he was 9 treated for it.” (Id. at 26-27.) Ms. Carpenter also testified that she did not see any reason 10 to interview Page’s doctor because he only showed signs of anxiety and “most of the 11 inmates that [she] interview[s] have some type of anxiety.” (Id. at 43.) At the conclusion 12 of the evidentiary hearing, the judge denied Page’s motion to withdraw his guilty plea 13 finding that there “has been nothing to cause the Court to have any concern that [Page] 14 was unable to appreciate . . . what he was doing.” (ECF No. 17-17 at 2; see also ECF 15 No. 17-18.) 16 Page later testified at the post-conviction evidentiary hearing that that he was 17 taking Vistaril while his case was pending. (ECF No. 18-11 at 33-35.) When asked how 18 the Vistaril affected him, Page responded as follows: It seemed to calm my nerves, but I was confused more or less. I 19 couldn’t concentrate properly on any of the questions that were asked. At 20 the time that the – the (unintelligible) or whatever came around, I wasn’t asking the questions to try to answer as truthfully as I could. I did take time 21 to answer ‘em; it did take me some time so. 22 (Id. at 35.) During cross-examination, Page testified that he never complained of any side 23 effects as a result of the Vistaril to any physician or staff member at the Clark County 24 Detention Center. (Id. at 36.) Thereafter, during re-direct examination, Page testified that 25 he is “very nervous, very anxious. So might have been confused. I don’t know – I don’t 26 even know how to explain that anymore, you know.” (Id. at 37.) 27 Importantly, during the plea colloquy, Page acknowledged that he understood the 1 Page further acknowledged that he read the plea agreement, discussed it with his 2 counsel, and understood it. (Id. at 4.; see also ECF No. 17-6 at 5.) Due to these 3 representations made by Page, as well as the judge’s “accept[ance of his] pleas of guilt 4 as being freely and voluntarily entered into,” (id. at 5) Page faces a “formidable barrier in 5 [this] subsequent collateral proceeding[ ].” Blackledge, 431 U.S. at 74. 6 And while Page may have been experiencing anxiety, there is no indication, other 7 than his testimony, that he was confused and unable to comprehend the proceedings. 8 See Sandgathe v. Maass, 314 F.3d 371, 379 (9th Cir. 2002) (reasoning that the petitioner 9 “offered no evidence for his asserted incompetence to plead” because the doctor who 10 met the petitioner prior to him entering his plea had no concerns about the petitioner’s 11 prescription drug use on his ability to defend himself in court); cf. Burket v. Angelone, 208 12 F.3d 172, 192 (4th Cir. 2000) (“[T]he fact that the petitioner has been treated with anti- 13 psychotic drugs does not per se render him incompetent to stand trial.”). And in fact, his 14 testimony was not definitive in explaining his confusion: Page testified that he “was 15 confused more or less” and “might have been confused.” (ECF No. 18-11 at 34, 36.) 16 Moreover, although Page was experiencing anxiety and hand tremors on December 16, 17 2010 (ECF No. 21-1 (sealed) at 1), it was reported on February 25, 2011, a month prior 18 to his arraignment, that Page was feeling okay and that his medications were working fine 19 with no reported side effects. (ECF No. 21-2 (sealed) at 1.) Similarly, Ms. Carpenter, who 20 interviewed Page for his presentence investigation, indicated that Page only showed 21 signs of anxiety and that she had no issues communicating with him. (ECF No. 17-16 at 22 27, 43.) 23 Accordingly, after “considering all of the relevant circumstances surrounding” 24 Page’s plea, Brady, 397 U.S. at 749, Page has failed to demonstrate that his guilty plea 25 was not knowing, intelligent, or voluntary. Further, Page has failed to demonstrate that he 26 was incompetent when he entered his guilty plea. See Godinez, 509 U.S. at 396. Thus, 27 the state courts’ ruling that “[n]othing in the plea canvas suggests that [Page] was 1 the influence of any substance or drug that impaired his ability to understand the 2 agreement or the guilty plea proceedings,” (ECF Nos. 18-1 at 2, 19-6 at 2-3) was not 3 contrary to, or an unreasonable application of, clearly established federal law, as 4 determined by the Supreme Court, and was not based on an unreasonable determination 5 of the facts in light of the evidence. See 28 U.S.C. § 2254(d). The Court will deny Page 6 habeas corpus relief with respect to Ground 1.2 7 B. Ground 2 8 In Ground 2, Page claims that his federal constitutional rights were violated 9 because his counsel failed to investigate his medical condition prior to him entering his 10 plea. (ECF No. 16 at 11.) Page argues that his counsel’s conduct fell below an objective 11 standard of reasonableness and that there is prejudice due to him entering a 12 constitutionally deficient plea. (Id. at 13.) Respondents assert that Page never informed 13 his counsel of any issues with his medication, and counsel had no independent reason to 14 know that Page was having any issue understanding the proceedings. (ECF No. 29 at 9.) 15 This ground was raised on the appeal in Page’s state habeas action. (ECF No. 19- 16 3 at 18 (“trial counsel failed to adequately investigate Mr. Page’s medical condition prior 17

18 2Page also argues that the judge presiding over his motion to withdraw his plea was not the same judge that accepted his plea, so she was not in a position to assess his 19 demeanor during the plea canvas. (ECF No. 34 at 9.) At the initial hearing on Page’s motion to withdraw his guilty plea, the judge indicated that she had not “reviewed the 20 JAVS to ascertain his demeanor, you know, his comprehension” but that she would “review the JAVS if need be” after Page and his counsel obtained information regarding 21 his medication. (ECF No. 17-11 at 5, 7.) Further, during the evidentiary hearing, the court 22 admitted Page’s arraignment court video and audio as an exhibit. (ECF No. 17-16 at 44- 45.) Accordingly, although the judge presiding over his motion to withdraw his plea was 23 not the same judge that accepted his plea, the judge had a visual and audio recording of the arraignment to view, so this argument lacks merit. 24 Page also argues that he was less likely to understand the plea process because 25 he had no prior convictions and that his signature on the final page of the plea should 26 only be construed as an acceptance of the plea, not as an assertion of his ability to understand the agreement. (ECF No. 34 at 10.) Because Page indicated during his 27 arraignment that he read and understood the plea agreement (see ECF No. 17-7 at 4), 1 to Mr. Page’s entry of plea.”).) The Nevada Court of Appeals held that “Page fails to 2 demonstrate counsel was deficient. Counsel testified at the postconviction evidentiary 3 hearing he had no reason to believe the medications Page took affected his ability to 4 understand the proceedings. The district court concluded counsel was credible and 5 substantial evidence supports the decision of the district court.” (ECF No. 19-6 at 2.) The 6 Court finds that the ruling of the Nevada Court of Appeals was reasonable. 7 In Strickland v. Washington, the Supreme Court propounded a two-prong test for 8 analysis of claims of ineffective assistance of counsel: the petitioner must demonstrate 9 (1) that the attorney’s “representation fell below an objective standard of reasonableness,” 10 and (2) that the attorney’s deficient performance prejudiced the defendant such that “there 11 is a reasonable probability that, but for counsel’s unprofessional errors, the result of the 12 proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). A court 13 considering a claim of ineffective assistance of counsel must apply a “strong presumption 14 that counsel’s conduct falls within the wide range of reasonable professional assistance.” 15 Id. at 689. The petitioner’s burden is to show “that counsel made errors so serious that 16 counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth 17 Amendment.” Id. at 687. And, to establish prejudice under Strickland, it is not enough for 18 the habeas petitioner “to show that the errors had some conceivable effect on the 19 outcome of the proceeding.” Id. at 693. When the ineffective assistance of counsel claim 20 is based on a challenge to a guilty plea, the Strickland prejudice prong requires the 21 petitioner to demonstrate “that there is a reasonable probability that, but for counsel’s 22 errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. 23 Lockhart, 474 U.S. 52, 59 (1985). In analyzing a claim of ineffective assistance of counsel 24 under Strickland, a court may first consider either the question of deficient performance 25 or the question of prejudice; if the petitioner fails to satisfy one element of the claim, the 26 court need not consider the other. See Strickland, 466 U.S. at 697. 27 At the hearing on his motion to withdraw his plea, Page’s attorney, Mr. Kevin 1 medications during the negotiation process or when he signed the plea agreement. (ECF 2 No. 17-11 at 3.) Similarly, during the post-conviction hearing, Speed testified that he did 3 “learn that [Page] had been taking medication,” but that he,

4 did not know that [at the time he was going over the plea with Page] 5 because Mr. Page didn’t share that with [him]. There is a portion of the guilty plea agreement that specifically asks a defendant whether he is under the 6 influence or taking any medication that would affect his ability to understand the guilty plea agreement, and to all of those questions Mr. Page answered 7 in the negative. 8 (ECF No. 18-11 at 10.) Speed testified that Page “had not complained of anxiety or 9 nervousness,” that he did not notice anything “that would raise any red flags,” and that he 10 did not seem “loopy” or under the influence of any drugs at any time. (Id. at 14-15.) Speed 11 clarified that “[i]t was a stressful situation obviously, and I understand – it is 12 understandable for a person charged with the number and type of crimes that Mr. Page 13 was charged with to be nervous, to be anxious, but over and above that, no, [he] didn’t 14 notice anything that would raise concerns.” (Id. at 14.) Speed also testified that “Mr. Page 15 understood the risks of proceeding to trial,” that “he came to the decision it seemed 16 rationally to enter the guilty plea negotiations,” and that “he seemed fine” regarding his 17 “ability to understand the process and the punishments, the penalties that went along with 18 the crimes that he was charged with.” (Id. at 18, 28.) 19 “When counsel has reason to question his client’s competence to plead guilty, 20 failure to investigate further may constitute ineffective assistance of counsel.” U.S. v. 21 Howard, 381 F.3d 873, 881 (9th Cir. 2004); see also Tharpe v. Warden, 834 F.3d 1323, 22 1342 (11th Cir. 2016) (finding that petitioner “has failed to identify . . . what ‘red flags’ 23 requiring further investigation concerning [his] background should have been seen by [his 24 counsel] under the circumstances as they knew or reasonably should have known them 25 to be at the time of their investigation”); Gonzales v. Knowles, 515 F.3d 1006, 1015 (9th 26 Cir. 2008) (“Absent any objective indication that [the defendant] suffered from any mental 27 illness, [trial counsel] cannot be deemed ineffective for failing to pursue this avenue of 1 Woodford, 316 F.3d 1079, 1085 (9th Cir. 2003) (“Trial counsel has a duty to investigate 2 a defendant’s mental state if there is evidence to suggest that the defendant is impaired.”); 3 Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990) (“It must be a very rare 4 circumstance indeed where a decision not to investigate would be ‘reasonable’ after 5 counsel has notice of the client’s history of mental problems.”) (emphasis added). Here, 6 there is no reason for Speed to have questioned Page’s competence—Page never 7 informed Speed that he was taking any medication, Page never explained to Speed that 8 he was feeling anxious or nervous, and Page did not exhibit any signs that he was 9 medicated or that we was having comprehension issues. Without notice that Page was 10 taking medication or objective evidence suggesting that Page was impaired, there was 11 no basis for Speed to have investigated. 12 Moreover, Speed’s testimony that he was unaware that Page was on any 13 medication is supported by the fact that Page signed a plea agreement stating that he 14 was “not now under the influence of any intoxicating liquor, a controlled substance or 15 other drug which would in any manner impair [his] ability to comprehend or understand 16 this agreement or the proceedings surrounding [his] entry of this plea.” (ECF No. 17-6 at 17 5.) See also Hibbler v. Benedetti, 693 F.3d 1140, 1149 (9th Cir. 2012) (reasoning that 18 “the state court record [does not] contain any evidence that [petitioner] had been taking 19 ‘powerful anti-psychotic medications’ at the time of his plea” because “both [petitioner] 20 and his counsel signed sworn statements on the day [petitioner] entered his plea averring 21 that [petitioner] was not under the influence of any drug that would affect his ability to 22 understand his actions.”) Therefore, Speed’s actions did not “f[a]ll below an objective 23 standard of reasonableness.” Strickland, 466 U.S. at 694. Furthermore, even if Speed’s 24 representation was deficient, Page makes no showing of a reasonable probability that, 25 but for Speed’s alleged inadequate investigation into his medications, he would not have 26 pled guilty and would have insisted on going to trial. See Hill, 474 U.S. at 59. 27 Page also argues that the state court used a substantial evidence test rather than 1 (ECF No. 34 at 14.) If the state court used the wrong standard, this court “need not defer 2 to that decision” and, instead, may analyze the claim de novo. Hardy v. Chappell, 849 3 F.3d 803, 820 (9th Cir. 2016). However, whether this court reviews the claim de novo or 4 with deference, the conclusion is the same: Page has failed to show that his counsel’s 5 performance was deficient pursuant to Strickland. 6 Accordingly, the Nevada Court of Appeals’ ruling that “Page fails to demonstrate 7 counsel was deficient” (ECF No. 19-6 at 2) was not contrary to, or an unreasonable 8 application of, clearly established federal law, as determined by the Supreme Court, and 9 was not based on an unreasonable determination of the facts in light of the evidence. See 10 28 U.S.C. § 2254(d). The Court will deny Page habeas corpus relief with respect to 11 Ground 2. 12 V. CERTIFICATE OF APPEALABILITY 13 The standard for the issuance of a certificate of appealability requires a “substantial 14 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). The Supreme Court 15 has interpreted 28 U.S.C. § 2253(c) as follows:

16 Where a district court has rejected the constitutional claims on the 17 merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district 18 court’s assessment of the constitutional claims debatable or wrong. 19 Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074, 20 1077-79 (9th Cir. 2000). 21 Applying this standard, the Court finds that a certificate of appealability is 22 unwarranted in this case. The Court will deny Page a certificate of appealability. 23 VI. CONCLUSION 24 It is therefore ordered that the Amended Petition for Writ of Habeas Corpus (ECF 25 No. 16) is denied. 26 It is further ordered that Petitioner is denied a certificate of appealability. 27 /// 1 The Clerk of Court is directed to enter judgment accordingly and close this case. 2 DATED THIS 22nd day of August 2019. 3 MIRANDA M. DU 4 UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27