Hernandez (Juan) v. Warden

• Court: Nevada Supreme Court
• Decided: June 11, 2014
• Docket: 64284
• Status: Unpublished

Opinion

insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Kirksey v. State, 112 Nev. 980, 988, 923 P.2d 1102, 1107 (1996). Both components of the inquiry must be shown. Strickland, 466 U.S. at 697. We give deference to the district court's factual findings if supported by substantial evidence and not clearly erroneous but review the court's application of the law to those facts de novo. Lader v. Warden, 121 Nev. 682, 686, 120 P.3d 1164, 1166 (2005). When a post-conviction petition raises claims supported by specific factual allegations which, if true, would entitle the petitioner to relief, the petitioner is entitled to an evidentiary hearing unless those claims are repelled by the record. Hargrove v. State, 100 Nev. 498, 503, 686 P.2d 222, 225 (1984). In his petition and supplemental petition for a writ of habeas corpus, Hernandez claimed that his counsel was ineffective for failing to: (1) consult with him regarding an appeal, inform him of the right to an appeal, and file a notice of appeal; (2) investigate and call key witnesses; (3) investigate his life history, the challenges he faced, and the violence he faced as a child and obtain an expert evaluation showing he was a low risk to reoffend and present this information as mitigating evidence at sentencing; and (4) "object to sentencing structure and other objections." Hernandez did not allege that he expressed dissatisfaction with his sentence to his counsel or inquired about an appeal within the relevant appeal period. See Toston v. State, 127 Nev. „ 267 P.3d 795, 801 (2011). He also did not allege any specific factual allegations in support of claims 2 and 4. Further, he did not demonstrate that he would be able to obtain an evaluation stating that he is a low risk to reoffend and he did not specify what testimony the identified individuals would have presented that would have differed from the arguments counsel made in

SUPREME COURT OF NEVADA 2 (0) 190A e mitigation at sentencing, nor did he demonstrate that further investigation or the testimony of these individuals would have resulted in a different sentence.' Therefore, we conclude that the district court did not err by concluding that Hernandez failed to support his claims with specific factual allegations that, if true, would entitle him to relief and denying the petition without conducting an evidentiary hearing. Accordingly, we ORDER the judgment of the district court AFFIRMED.

cc: Chief Judge, The Tenth Judicial District Hon. Robert E. Estes, Senior Judge The Law Office of Jacob N. Sommer Churchill County District Attorney/Fallon Churchill County Clerk

'Hernandez entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to attempted murder and was sentenced to a term of 5 to 20 years.

SUPREME COURT OF NEVADA 3 (0) 1947A e