                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 19 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DEMONDRAY D. MAYO,                              No.    18-16081

                Petitioner-Appellant,           D.C. No.
                                                3:09-cv-00316-MMD-WGC
 v.

STATE OF NEVADA; ATTORNEY                       MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,

                Respondents-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                  Miranda M. Du, Chief District Judge, Presiding

                      Argued and Submitted January 24, 2020
                            San Francisco, California

Before: W. FLETCHER and R. NELSON, Circuit Judges, and SESSIONS,**
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
         Demondray Mayo appeals the district court’s denial of his petition for writ

of habeas corpus under 28 U.S.C.§ 2254. We have jurisdiction under 28 U.S.C. §§

1291 and 2253, and we affirm.

         1. Mayo argues that the Nevada Supreme Court’s determination that his

guilty plea was knowing and voluntary was contrary to clearly established federal

law and based on an unreasonable determination of fact. This argument lacks

merit.

         “A state court’s decision is an ‘unreasonable application’ of federal law only

if it is ‘objectively unreasonable[.]’” Riley v. Payne, 352 F.3d 1313, 1317 (9th Cir.

2003) (citation omitted). Here, the Nevada Supreme Court concluded that Mayo’s

plea was knowing, voluntary, and intelligent based on a rational evaluation of the

evidentiary record. See Boykin v. Alabama, 395 U.S. 238, 242-243 (1969). At the

plea canvass, Mayo stated that he was entering the plea freely and voluntarily; he

also answered multiple other questions suggesting that he understood what was

occurring. The state supreme court further found that the transcript of Mayo’s

interview with the police prior to the hearing “reflects that Mayo was lucid,

described his versions of events with some detail,” and provided a consistent set of

facts to the officers. According to the Nevada Supreme Court, Mayo’s

comportment during this interview reflected sufficient intellectual capability for

the trial court to have determined that he was competent to enter the plea. Based on


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the record, the Nevada Supreme Court’s legal determination was not objectively

unreasonable.

      Insofar as the state court’s factual findings are challenged, the “unreasonable

determination of fact” clause of 28 U.S. § 2254(d) requires that federal courts

“must be particularly deferential” to state court factual determinations. Lambert v.

Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). Here, the Nevada Supreme Court’s

determined that Mayo’s plea was voluntary and knowing based on multiple facts in

the record. We find that the Nevada Supreme Court’s findings of fact regarding

Mayo’s plea are supported by the record and are reasonable.

      2. Mayo asks this Court to expand the certificate of appealability (COA) to

consider his ineffective assistance of counsel claim. In order for this Court to grant

a certificate of appealability in a post-AEDPA habeas case such as this one, the

Petitioner must make “a substantial showing of the denial of a constitutional right.”

Slack v. McDaniel, 529 U.S. 473, 483 (2000). A Petitioner makes such a showing

(1) if he or she demonstrates that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong;” or (2) the issue

presented is “adequate to deserve encouragement to proceed further.” Id. at 483-

84. Mayo has not made such a showing.

      Mayo does not present clear evidence in the record showing that his attorney

failed to meet a reasonable level of professional competence even though he did


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not challenge the guilty plea based on intellectual deficits or medication that Mayo

was taking at the time. See Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). In the

absence of clear evidence that Mayo was not able to understand instructions or

make decisions due to these reasons, counsel’s failure to raise them was not

necessarily or likely ineffective.

      Additionally, while Mayo claims that he suffered prejudice on account of

counsel’s failure to raise these issues, he presents sparse evidence that he would

have changed his plea had counsel acted differently. The State of Nevada had a

fairly strong case against Mayo; multiple individuals had reported to the police that

Mayo had admitted to shooting Escoto-Gonzales. Mayo has not shown that he

made the decision to plead guilty in haste, in a state of confusion, or without

receiving multiple explanations of its consequences due to the negligence of

counsel. For these reasons, and in light of the significant deference accorded to a

state supreme court’s denial of an ineffective assistance of counsel claim,

reasonable jurists would likely not find the district court’s denial of Mayo’s Sixth

Amendment constitutional claim debatable or incorrect. See Cullen v. Pinholster,

563 U.S. 170, 173 (2011). This Court declines to hear this issue on appeal.

      AFFIRMED.




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