Kenneth Thomas v. DWIGHT NEVEN, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH THOMAS,
Petitioner-Appellant,
v.
DWIGHT NEVEN, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
No. 20-16102
D.C. No.
3:15-cv-00071-MMD-WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted December 10, 2021
San Francisco, California
Before: MURGUIA, Chief Judge, and IKUTA and VANDYKE, Circuit Judges.
Kenneth Thomas appeals the district court’s denial of his habeas petition.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm the district
FILED
DEC 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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court’s denial of Thomas’s petition and deny his motion to expand the certificate of
appealability (COA).1
The Nevada Supreme Court’s determination that Thomas’s counsel did not
render ineffective assistance of counsel by failing to file an appeal was not an
objectively unreasonable application of Strickland v. Washington, 466 U.S. 668
(1984), or Roe v. Flores-Ortega, 528 U.S. 470 (2000), given the court’s
determinations that (1) Thomas never asked his attorney, Robert Langford, to file
an appeal, (2) Langford spoke to Thomas after sentencing and explained that there
were no meritorious issues to raise on direct appeal, and (3) Thomas agreed with
Langford that post-conviction remedies would be the best path forward. Thomas
does not clearly challenge the state court’s factual determinations as objectively
unreasonable under 28 U.S.C. § 2254(d)(2). Even if Thomas raised such a
challenge, it fails on the merits. The state trial court’s credibility determinations
crediting Langford’s testimony but not Thomas’s were supported by the record and
not objectively unreasonable. See Zapien v. Davis, 849 F.3d 787, 793 (9th Cir.
2015). Because the state court was not objectively unreasonable in rejecting
1 See Ninth Circuit Rule 22-1(e) (“Uncertified issues raised and designated
[in a petitioner's opening brief] will be construed as a motion to expand the COA . .
. .”).
2

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Thomas’s ineffective assistance of counsel claim, the district court did not err in
denying habeas relief. 28 U.S.C. § 2254(d)(1).
As to Thomas’s uncertified issue, reasonable jurists could not disagree with
the district court’s conclusion that the state court was not objectively unreasonable
in determining Thomas’s plea was knowingly, voluntarily, and intelligently
entered. The district court reasonably concluded that the state court did not
unreasonably apply clearly established Supreme Court precedent given that (1) a
psychologist who interviewed Thomas at his attorney’s request was confident that
Thomas was competent (which would indicate that his plea canvass was adequate),
see Godinez v. Moran, 509 U.S. 389, 396 (1993); Boykin v. Alabama, 395 U.S.
238, 243–44 (1969), (2) there was no evidence Thomas was mentally coerced, see
Brady v. United States, 397 U.S. 742, 750 (1970), and (3) Thomas’s failure to
directly respond in the plea colloquy to the question whether he murdered someone
with the use of a deadly weapon did not vitiate his plea, see North Carolina v.
Alford, 400 U.S. 25, 37 (1970). Because Thomas has not made a “substantial
showing” that his constitutional rights were violated, see 28 U.S.C. § 2253(c)(2),
we decline to expand the COA to accommodate the uncertified issue.
AFFIRMED.
3

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