                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                           FOR THE NINTH CIRCUIT
                                                                           JUN 21 2017
ASHLEY LOWE,                                     No. 16-55074           MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


              Petitioner-Appellant,              D.C. No.
                                                 10-cv-02795-JVS-KES
 v.

DEBORAH K. JOHNSON,                              MEMORANDUM*

              Respondent-Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                        Argued and Submitted June 6, 2017
                               Pasadena, California

Before: GRABER, SACK,** and MURGUIA, Circuit Judges.

      In this comeback case, petitioner Ashley Lowe appeals the district court’s

denial of her petition for habeas corpus. After pleading no contest to second-

degree murder and being sentenced to a term of sixteen years’ to life


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
       The Honorable Robert D. Sack, United States Circuit Judge for the Court
of Appeals for the Second Circuit, sitting by designation.
imprisonment, Lowe petitioned for habeas relief in the Los Angeles County

Superior Court, a California Court of Appeal, and the California Supreme Court,

asserting that (1) her rights under Miranda v. Arizona, 384 U.S. 436 (1966), were

violated when she was questioned prior to her arrest, and (2) she received

ineffective assistance of counsel in connection with her no-contest plea. After her

state-court petitions were denied, Lowe filed the instant habeas corpus petition in

the District Court for the Central District of California.

      We previously reversed the district court’s decision dismissing Lowe’s

petition as untimely, concluding that the district court had abused its discretion in

failing to address Lowe’s equitable tolling claims. Lowe v. Johnson, 584 F. App’x

702, 703 (9th Cir. 2014) (unpublished disposition). On remand, the district court

again dismissed Lowe’s petition, this time on the merits. We affirm.

      1. “We review de novo a district court’s decision to deny a petition for

habeas corpus.” Bailey v. Hill, 599 F.3d 976, 978 (9th Cir. 2010). Where a state

court adjudicated the habeas petitioner’s claim on the merits, our review is

governed by the deferential standard established by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq. Hibbler v.

Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). Under AEDPA, a habeas

petitioner is not entitled to relief unless the state court proceeding (1) “resulted in a


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decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the [s]tate court proceeding,” 28 U.S.C. § 2254(d)(2); or

(2) “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,” id. § 2254(d)(1); Hibbler, 693 F.3d at 1146. In

applying this standard, “[w]e review the state court’s last reasoned decision.”

Towery v. Ryan, 673 F.3d 933, 944 (9th Cir. 2012) (per curiam) (internal quotation

marks omitted).

      2. The district court correctly concluded that the Los Angeles Superior

Court’s dismissal of Lowe’s ineffective-assistance claim was neither (1) based on

an unreasonable determination of the facts, nor (2) contrary to, or an unreasonable

application of, clearly established federal law. The Superior Court rejected Lowe’s

ineffective-assistance claim on the ground that the record evidence refuted Lowe’s

allegation that her attorney did not adequately explain the plea agreement to her.

This determination was not objectively unreasonable. See Taylor v. Maddox, 366

F.3d 992, 999 (9th Cir. 2004) (“[A] federal court may not second-guess a state

court’s fact-finding process unless, after review of the state-court record, it

determines that the state court was not merely wrong, but actually unreasonable.”).

In addition to indicating on the plea form that she had reviewed the plea agreement


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with her attorney, Lowe affirmed on the record at the plea hearing that she was

entering into the plea agreement freely and voluntarily, that she had discussed the

plea form with her attorney, and that she understood its contents. Lowe’s attorney

similarly affirmed that he had explained Lowe’s rights to her and discussed the

plea agreement with her. “[T]he representations of the defendant [and] his lawyer

[at a plea hearing] . . . constitute a formidable barrier in any subsequent collateral

proceedings,” and “[s]olemn declarations in open court carry a strong presumption

of verity.” Blackledge v. Allison, 431 U.S. 63, 73-74 (1977); see also Muth v.

Fondren, 676 F.3d 815, 821 (9th Cir. 2012) (“Petitioner’s statements at the plea

colloquy carry a strong presumption of truth.”). Because Lowe has not offered any

credible explanation for the contradiction between her sworn statements and the

allegations in her habeas petition, the Superior Court could have reasonably

concluded that she failed to overcome that presumption. See Womack v. Del Papa,

497 F.3d 998, 1004 (9th Cir. 2007) (rejecting a habeas petitioner’s allegation that

he received ineffective assistance when his counsel neglected to discuss his

potential defenses with him because that “assertion [was] completely contrary to

his statement in the plea agreement that [he] ha[d] discussed with [his] attorney

any possible defenses, defense strategies and circumstances which might be in [his]

favor” (internal quotation marks omitted)).


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      3. Lowe argues that the Superior Court was required to hold an evidentiary

hearing before rejecting her ineffective-assistance claim as refuted by the record.

However, “[a] state court’s decision not to hold an evidentiary hearing does not

render its fact-finding process unreasonable so long as the state court could have

reasonably concluded that the evidence already adduced was sufficient to resolve

the factual question.” Hibbler, 693 F.3d at 1147. Accordingly, where, as here,

“the evidence before the state court, taken as a whole, clearly belie[s] [the

petitioner’s] allegations,” “no such hearing is required.” Id. at 1148.

      4. The Superior Court’s rejection of Lowe’s ineffective-assistance claim

was also consistent with clearly established federal law. To prevail on this claim,

Lowe was required to show that (1) her attorney’s performance was

constitutionally deficient, and (2) there is a reasonable probability that, but for her

attorney’s unprofessional errors, Lowe would have gone to trial rather than

pleading no contest. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hill

v. Lockhart, 474 U.S. 52, 58-59 (1985). Here, the Superior Court could have

reasonably determined that Lowe could not satisfy either prong of this analysis:

Because the record showed that Lowe’s attorney did explain the plea agreement to

her, Lowe could not establish that her counsel was deficient in failing to do so; nor

could she demonstrate that she was prejudiced by any such failure.


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      5. The Superior Court also properly determined that Lowe’s Miranda claim,

as pleaded, is not cognizable on habeas review. In Tollett v. Henderson, 411 U.S.

258 (1973), the Supreme Court held that “[w]hen a criminal defendant [pleads

guilty] . . . he may not thereafter raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty

plea,” id. at 267. Rather, he may assert only a “McMann claim” attacking the

voluntary and intelligent character of his guilty plea by showing that the advice he

received from counsel was “not ‘within the range of competence demanded of

attorneys in criminal cases.’” Id. at 266 (quoting McMann v. Richardson, 397 U.S.

770, 771 (1970)). We agree with the district court that, contrary to Lowe’s

contention, her Miranda claim, however liberally construed, cannot be

characterized as a McMann claim, and that the Superior Court therefore properly

dismissed this claim as an improper matter for habeas review.

      AFFIRMED.




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