United States District Court, D. Nevada
DEMONDRAY D. MAYO, Petitioner,
NEVADA, STATE OF, et al., Respondents.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
the Court is Petitioner Demondray D. Mayo's first-amended
28 U.S.C. § 2254 habeas petition for adjudication on the
merits (ECF No. 17).
BACKGROUND & PROCEDURAL HISTORY
September 6, 2006, Mayo pleaded guilty to second-degree
murder with use of a deadly weapon. (ECF No. 19-7.) He was
sixteen at the time of the crime and seventeen when the state
district court sentenced him to a term of life with the
possibility of parole after ten years, with an equal and
consecutive term of life with the possibility of parole after
ten years for the deadly weapon enhancement, with 629
days' credit for time served. (ECF No. 19-25.) The court
entered the judgment of conviction on April 23, 2007.
filed a motion to correct illegal sentence/withdraw guilty
plea on November 9, 2007. (ECF No. 19-26.) The Nevada Supreme
Court affirmed the denial of that motion on January 30, 2009,
and remittitur issued on February 24, 2009. (ECF No. 20-4;
ECF No. 20-6.)
the Nevada Supreme Court affirmed Mayo's conviction on
November 13, 2013, and remittitur issued on December 10,
2013. (ECF No. 45-25; ECF No. 45-26.) On December 8, 2015,
the Nevada Supreme Court affirmed the denial of Mayo's
counseled, state postconviction habeas corpus petition, and
remittitur issued on January 12, 2016. (ECF No. 47-7; ECF No.
meantime, Mayo had dispatched his federal habeas petition for
mailing on or about May 25, 2009. (ECF No. 8.) This court
granted Mayo's motion for appointment of counsel. (ECF
No. 7.) Mayo filed a counseled, first-amended petition. (ECF
No. 17.) On June 20, 2011, this court granted Mayo's
motion to stay and abey these proceedings pending the
conclusion of his state-court proceedings. (ECF No. 39.)
April 22, 2016, the court granted Mayo's motion to reopen
the case. (ECF No. 49.) Respondents have now answered the
petition, and Mayo replied. (ECF Nos. 52, 55.)
Antiterrorism and Effective Death Penalty Act
U.S.C. § 2254(d), a provision of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), provides
the legal standards for this court's consideration of the
petition in this case:
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 to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim ―
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
AEDPA “modified a federal habeas court's role in
reviewing state prisoner applications in order to prevent
federal habeas ‘retrials' and to ensure that
state-court convictions are given effect to the extent
possible under law.” Bell v. Cone, 535 U.S.
685, 693-694 (2002). This Court's ability to grant a writ
is limited to cases where “there is no possibility
fair-minded jurists could disagree that the state court's
decision conflicts with [Supreme Court] precedents.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). The
Supreme Court has emphasized “that even a strong case
for relief does not mean the state court's contrary
conclusion was unreasonable.” Id. (citing
Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); see
also Cullen v. Pinholster, 563 U.S. 170, 181 (2011)
(describing the AEDPA standard as “a difficult to meet
and highly deferential standard for evaluating state-court
rulings, which demands that state-court decisions be given
the benefit of the doubt”) (internal quotation marks
and citations omitted).
court decision is contrary to clearly established Supreme
Court precedent, within the meaning of 28 U.S.C. § 2254,
“if the state court applies a rule that contradicts the
governing law set forth in [the Supreme Court's]
cases” or “if the state court confronts a set of
facts that are materially indistinguishable from a decision
of [the Supreme Court] and nevertheless arrives at a result
different from [the Supreme Court's] precedent.”
Lockyer, 538 U.S. at 73 (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000), and citing
Bell, 535 U.S. at 694).
court decision is an unreasonable application of clearly
established Supreme Court precedent, within the meaning of 28
U.S.C. § 2254(d), “if the state court identifies
the correct governing legal principle from [the Supreme
Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case.”
Lockyer, 538 U.S. at 74 (quoting Williams,
529 U.S. at 413). The “unreasonable application”
clause requires the state court decision to be more than
incorrect or erroneous; the state court's application of
clearly established law must be objectively unreasonable.
Id. (quoting Williams, 529 U.S. at 409).
extent that the state court's factual findings are
challenged, the “unreasonable determination of
fact” clause of Section 2254(d)(2) controls on federal
habeas review. E.g., Lambert v. Blodgett, 393 F.3d
943, 972 (9th Cir. 2004). This clause requires that the
federal courts “must be particularly deferential”
to state court factual determinations. Id. The
governing standard is not satisfied by a showing merely that
the state court finding was “clearly erroneous.”
Lambert, 393 F.3d at 973. Rather, AEDPA requires
substantially more deference:
[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 similar circumstances if this
were an appeal from a district court decision. Rather, we
must be convinced that an appellate panel, applying the
normal standards of appellate review, could not reasonably
conclude that the finding is supported by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004);
see also Lambert, 393 F.3d at 972.
28 U.S.C. § 2254(e)(1), state court factual findings are
presumed to be correct unless rebutted by clear and
convincing evidence. The petitioner bears the burden of
proving by a preponderance of the evidence that he is
entitled to habeas relief. Cullen, 563 U.S. at 181.
Finally, in conducting an AEDPA analysis, this court looks to
the last reasoned state-court decision. Murray v.
Schriro, 745 F.3d 984, 996 (9th Cir. 2014).
prisoner is entitled to federal habeas relief only if he is
being held in custody in violation of the constitution, laws,
or treaties of the United States. 28 U.S.C. § 2254(a).
Unless an issue of federal constitutional or statutory law is
implicated by the facts presented, the claim is not
cognizable under federal habeas corpus. Estelle v.
McGuire, 502 U.S. 62, 68 (1991). A petitioner may not
transform a state-law issue into a federal one merely by
asserting a violation of due process. Langford v.
Day, 110 F.3d 1380, 1381 (9th Cir. 1996). Alleged errors
in the interpretation or application of state law do not
warrant habeas relief. Hubbart v. Knapp, 379 F.3d
773, 779-80 (9th Cir. 2004).
Ineffective Assistance of Counsel
assistance of counsel claims are governed by the two-part
test announced in Strickland v. Washington, 466 U.S.
668 (1984). In Strickland, the Supreme Court held
that a petitioner claiming ineffective assistance of counsel
has the burden of demonstrating that (1) the attorney made
errors so serious that he or she was not functioning as the
“counsel” guaranteed by the Sixth Amendment, and
(2) that the deficient performance prejudiced the defense.
Williams, 529 U.S. at 390-91 (citing
Strickland, 466 U.S. at 687). To establish
ineffectiveness, the defendant must show that counsel's
representation fell below an objective standard of
reasonableness. Id. To establish prejudice, the
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. Id. A
reasonable probability is “probability sufficient to
undermine confidence in the outcome.” Id.
Additionally, any review of the attorney's performance
must be “highly ...