UNITED STATES C OUR T OF APPEALS
FOR THE NINTH C IR C U IT

DEM ONDR

AY D. M AYO,
Pe t i tione r-Appe lla

nt,

v. STATE OF NEVADA; ATTOR NEY GENER AL FOR THE STATE OF NEVADA,
R e sponde nts-Appe lle e s. No. 18-16081
D.C . No. 3:09-c v-00316-M M D-W GC Distric t of Ne va da , R e no

OR D ER

B e fore : W . FLETC HER

a nd R . NELSON, C irc uit Judge s, a nd SESSIONS, * Distric t Judge

. The pe tition for pa

n e l re he a ring is DENIED. Judge s W

. Fle tc he r a nd R

. Ne lson vote to DENY the pe tition for re h e a ring e n ba nc , a nd Judge Se s sions so

re c o m m e nds. The full c o u rt ha s be e n a dvise d of the pe tition for re he a ring e n ba nc ,

a nd no judge of the c ourt ha s re que ste d a vote on whe t

he r to re he a r the m a tte r e n ba nc . Fe d. R . App. P. 35. The m e m ora ndum

disposition file d on Fe brua ry 19, 2020, is a

m e nde d. The

a m e nde d m e m ora ndum

disposition will be

file d c onc urre ntly

with this orde r. 

# FIL ED

APR 1 2020
M OLLY C. DW Y E R, CLERK U. S. CO URT O F APPEALS

* The Honora

ble W illia m K. Se ssions III, Unite d Sta te s Distric t Judge for the Distric t of Ve rm ont, sitting by de s igna tion.Subse que nt pe titions for pa n e l re he a ring a

nd/or pe titions for re he a

ring e n ba nc m a y be file d with re spe c t to the a m e nde d m e m ora ndum disposition in a

c c orda nc e with
the re quire m e nts of Fe d

. R . App. P. 40 a nd 35.

2NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEMONDRAY D. MAYO,

Petitioner

- Appellant,

v. STATE OF NEVADA; ATTORNEY GENERAL FOR THE STATE OF NEVADA, Respondents

- Appellees. No. 18

- 16081
D.C. No. 3:09

- cv - 00316

- MMD

- WGC
AMENDED MEMORANDUM *

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. 

# FILED

APR 1 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 18

- 16081

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 2 8 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. As the state supreme court held, the trial court “had the opportunity to observe appella nt’s demeanor during the plea canvass.” It also considered that Mayo had been involved in directing several important decisions in his case. Based on the record, the Nevada Supreme Court’s legal determination that the Nevada district cou rt did not abuse its discretion in determining Mayo’s plea was knowing and voluntary was not objectively unreasonable.3 18

- 16081

Insofar as the state court’s factual findings are challenged, the “unreasonable determination of fact” clause of 28 U.S. § 2254(d) requir es 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 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 assista nce 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 demonstra tes 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 48 3

- 8 4. 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 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, 5 8

- 5 9 (1985). In the4 18

- 16081

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 ineffecti ve. 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 ca se 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 multip le explanations of its consequences due to the negligence of counsel. For these reasons, and i n 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). T his Court declines to hear this issue on appeal.
AFFIRMED.