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Mayo v. State

United States District Court, D. Nevada

May 11, 2018

DEMONDRAY D. MAYO, Petitioner,
NEVADA, STATE OF, et al., Respondents.



         I. SUMMARY

         Before 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).


         On 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. Id.

         Mayo 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.)

         Ultimately, 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. 47-8.)

         In the 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.)

         On 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.)


         A. Antiterrorism and Effective Death Penalty Act

         28 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; or
(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.

         The 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).

         A state 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).

         A state 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).

         To the 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.

         Under 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).

         A state 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).

         B. Ineffective Assistance of Counsel

         Ineffective 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 ...

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