Hernandez v. Warden Legrand

• Court: District Court, D. Nevada
• Decided: June 1, 2021
• Docket: 3:17-cv-00697
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JOSEPH A. HERNANDEZ, Case No. 3:17-cv-00697-MMD-WGC

7 Petitioner, ORDER v. 8

9 LeGRAND, et al.,

10 Respondents.

11 12 I. SUMMARY 13 Petitioner Joseph Hernandez filed a petition for writ of habeas corpus under 28 14 U.S.C. § 2254. This matter is before the Court for adjudication of the merits of Petitioner’s 15 amended petition. (ECF No. 14 (“Petition”).) For the reasons discussed below, the Court 16 denies both the Petition and a certificate of appealability. 17 II. BACKGROUND 18 Petitioner’s convictions are the result of events that occurred in Pershing County, 19 Nevada on, about, or between September 1, 2010 and September 25, 2010. (ECF No. 16- 20 19.) Julieann Rowley testified that the victim, her four-year-old granddaughter, the victim’s 21 mother, Rowley’s ex-daughter-in-law, and Petitioner, the victim’s stepfather, lived with her. 22 (ECF No. 17-2 at 31-32.) 23 During that time, the victim told Rowley that Petitioner “would touch her vagina.” (Id. 24 at 34.) And during a forensic interview, the victim stated that Petitioner “‘touche[d] her pee 25 pee and [she] show[ed] him [her] naked parts’” on more than one occasion while “they 26 were in her mom’s room on the bed.” (ECF No. 17-31 at 43-44.) The victim also stated 27 that Petitioner’s hand “went inside her pee pee,” and he “touched her pee pee with his 28 mouth.” (Id. at 44.) Later, during an in-custody interview with law enforcement, Petitioner 1 “admit[ted] to performing sexual acts against” the victim, and during his arraignment, 2 Petitioner stated that he “inappropriately touched” the victim “in a sexual manner” in “her 3 vaginal area” on two separate occasions. (ECF Nos. 16-24 at 11-19; 17-2 at 16.) 4 Following the entry of Petitioner’s guilty plea, Petitioner was convicted of two counts 5 of lewdness with a child under the age of 14 and sentenced to 10 years to life for both 6 counts, running consecutively. (ECF No. 17-1 at 2-3.) Petitioner was also sentenced to 7 lifetime supervision. (Id. at 3.) Petitioner appealed, and the Nevada Supreme Court 8 affirmed on February 13, 2013. (ECF Nos. 17-5, 17-12.) Remittitur issued on March 12, 9 2013. (ECF No. 17-13.) 10 Petitioner filed his pro se state habeas petition on April 17, 2013, and a counseled 11 supplemental petition on November 6, 2013. (ECF Nos. 17-17, 17-31.) Following a post- 12 conviction evidentiary hearing, the state district court denied the petition on September 30, 13 2016. (ECF Nos. 19-3, 19-9.) Petitioner appealed, and the Nevada Court of Appeals 14 affirmed on October 11, 2017. (ECF Nos. 19-10, 19-42.) Remittitur issued on November 15 6, 2017. (ECF No. 19-44.) 16 Petitioner filed his pro se federal habeas petition on December 4, 2017, and his 17 instant counseled Petition on December 31, 2018. (ECF Nos. 4, 14.) Petitioner alleges the 18 following violations of his federal constitutional rights:

19 1. He did not plead guilty knowingly, voluntarily, and intelligently. 20 2(a). His trial counsel failed to move to suppress his confession, or advise him of his ability to do so, before advising him to accept a plea offer 21 2(b). His trial counsel failed to adequately investigate prior to advising him to plead guilty. 22 2(c). His trial counsel failed to provide him with discovery in a timely fashion, such that he was prevented from making a knowing, 23 intelligent, and voluntary decision about proceeding with a plea. 24 (ECF No. 14.) 25 Respondents moved to dismiss the claims asserted in Ground 2 on December 31, 26 2018. (ECF No. 15.) This Court denied the motion on June 4, 2019. (ECF No. 29.) 27 Respondents answered the Petition on August 5, 2019, and Petitioner replied on 28 December 3, 2019. (ECF Nos. 30, 37.) 1 III. LEGAL STANDARD 2 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in habeas 3 corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”):

4 An application for a writ of habeas corpus on behalf of a person in custody 5 pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings 6 unless the adjudication of the claim --

7 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 8 determined by the Supreme Court of the United States; or 9 (2) resulted in a decision that was based on an unreasonable 10 determination of the facts in light of the evidence presented in the State court proceeding. 11 12 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established Supreme 13 Court precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule 14 that contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state 15 court confronts a set of facts that are materially indistinguishable from a decision of [the 16 Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 17 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state 18 court decision is an unreasonable application of clearly established Supreme Court 19 precedent within the meaning of 28 U.S.C. § 2254(d) “if the state court identifies the correct 20 governing legal principle from [the Supreme] Court’s decisions but unreasonably applies 21 that principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. at 22 413). “The ‘unreasonable application’ clause requires the state court decision to be more 23 than incorrect or erroneous. The state court’s application of clearly established law must 24 be objectively unreasonable.” Id. (quoting Williams, 529 U.S. at 409-10) (internal citation 25 omitted). 26 The Supreme Court has instructed that “[a] state court’s determination that a claim 27 lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ 28 on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 1 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has 2 stated “that even a strong case for relief does not mean the state court’s contrary 3 conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen 4 v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult to meet” 5 and “highly deferential standard for evaluating state-court rulings, which demands that 6 state-court decisions be given the benefit of the doubt” (internal quotation marks and 7 citations omitted)). 8 IV. DISCUSSION 9 A. Ground 1 10 In Ground 1, Petitioner argues that he did not plead guilty knowingly, voluntarily, 11 and intelligently because he did not have an adequate understanding of the law and facts. 12 (ECF No. 14 at 5.) Petitioner contends that he entered his plea based on Rowley’s false 13 allegations, which he wrongly believed he was powerless to rebut, and based his decision 14 to plead guilty on a lack of understanding of the law surrounding motions to suppress false 15 confessions. (Id.) Regarding the latter contention, Petitioner elaborates that many factors 16 interfered with his cognition at the time of the custodial interrogation—his bipolar disorder, 17 sleep deprivation, and his history of falsely admitting things—and if he had understood his 18 ability to present a colorable suppression claim, he would not have accepted the plea deal. 19 (Id. at 6.) In affirming Petitioner’s convictions on direct appeal, the Nevada Supreme Court 20 held:

21 Appellant Joseph Adrian Hernandez contends that the district court erred by 22 denying his presentence motion to withdraw his guilty plea because it was based on untrue information originating from the victim’s grandmother, an 23 invalid confession that he made while sleep deprived and going through the manic stages of his bipolar disorder, and his willingness to admit to things to 24 avoid confrontation with authority figures.

25 “This Court will not reverse a district court’s determination concerning the 26 validity of a [guilty] plea absent a clear abuse of discretion.” Johnson v. State, 123 Nev. 139, 144, 159 P.3d 1096, 1098 (2007). Here, the district court 27 conducted a hearing on Hernandez’s motion. Hernandez testified that he made a hasty decision to enter the guilty plea, did not commit the alleged 28 1 cpoleuardt fgouuinltyd athnadt sHweorrnea unnddeez r woaasth tthhoarto hueg hrleya cda, nuvnadsesresdto oodn, hainsd dseigcniseiodn t hteo 2 written plea agreement; understood his rights and voluntarily waived them; and understood the nature of the charges against him, the associated 3 penalties, and the consequences of pleading guilty. The district court further found that Hernandez’s testimony at the hearing on his motion was incredible; 4 Hernandez did not meet his burden to show that the guilty plea was invalid; and the totality of the circumstances demonstrated that Hernandez entered 5 his plea intelligently, knowingly, and voluntarily. 6 The record on appeal supports the district court’s factual findings, and we 7 conclude that Hernandez has failed to demonstrate that the district court abused its discretion by denying his presentence motion to withdraw his guilty 8 plea. See id. (defendant bears the burden of proving that his plea is invalid). 9 10 (ECF No. 17-12 at 2-3.) The Nevada Supreme Court’s rejection of Petitioner’s claim was 11 neither contrary to nor an unreasonable application of clearly established law as 12 determined by the United States Supreme Court. 13 Petitioner was originally charged with two counts of sexual assault of a child under 14 14 years of age and two counts of abuse, neglect, or endangerment of a child. (See ECF 15 No. 16-3.) In return for pleading guilty, the State “reduced the charges from sexual assault 16 . . . to lewdness” and dropped the “abuse or neglect of a child” charges. (ECF No.16-24 at 17 5-6.) Petitioner signed a guilty plea agreement on September 27, 2011, indicating, in part, 18 that he had “discussed with [his] attorney any possible defenses and circumstances which 19 might be in [his] favor” and that he “sign[ed] th[e] agreement voluntarily.” (ECF No. 16-25 20 at 6.) Petitioner’s trial counsel also signed the agreement, indicating that “[t]o the best of 21 [his] knowledge and belief, [Hernandez]: . . . [e]xecuted this agreement and will enter all 22 Guilty pleas pursuant hereto voluntarily.” (Id. at 8.) At Petitioner’s arraignment held the 23 same day, Petitioner responded in the affirmative when asked on two occasions if he was 24 pleading guilty “freely and voluntarily.” (ECF No. 16-24 at 10, 21-22.) Following a thorough 25 canvass, the state district court found that Petitioner’s “pleas have been made freely and 26 voluntarily.” (Id. at 23.) 27 Several months later, on January 3, 2012, Petitioner moved to withdraw his guilty 28 plea. (ECF No. 16-31.) A hearing was held on the motion, and Petitioner maintained that 1 he was innocent. (ECF No. 16-39 at 7-8.) He testified that he made “a hasty decision as 2 far as the entering of the guilty plea” and explained that he has “issues with honesty in 3 regards to when there’s authority figures above” him, meaning that “when confronted with 4 something, [he] will pretty must admit to something [he] didn’t do just to avoid 5 confrontation.” (Id. at 8-9.) Petitioner illustrated that he also falsely confessed to having 6 stolen goods and to a burglary charge. (Id. at 34-35.) Moreover, at the time of his law 7 enforcement interview, Petitioner’s daughter was one-day old, and he was sleep deprived. 8 (Id. at 9-10.) Finally, Petitioner testified that he “was pretty much going through a manic 9 stage of [his] bipolar disorder” during his arraignment and that he suffered from a traumatic 10 childhood, namely that he was taken away from his parents as a child because they “were 11 drug addicts” and because he was “being neglected and abused.” (Id. at 10-11.) The state 12 district court denied the motion to withdraw Petitioner’s guilty plea. (Id. at 56; see also ECF 13 No. 16-40.) 14 The federal constitutional guarantee of due process of law requires that a guilty plea 15 be knowing, intelligent, and voluntary. See Brady v. United States, 397 U.S. 742, 748 16 (1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969); United States v. Delgado-Ramos, 17 635 F.3d 1237, 1239 (9th Cir. 2011). “The voluntariness of [a petitioner’s] plea can be 18 determined only by considering all of the relevant circumstances surrounding it.” Brady, 19 397 U.S. at 749. Addressing the “standard as to the voluntariness of guilty pleas,” the 20 Supreme Court has stated: a “plea of guilty entered by one fully aware of the direct 21 consequences . . . must stand unless induced by threats . . . , misrepresentation (including 22 unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature 23 improper as having no proper relationship to the prosecutor’s business.” Id. at 755 (quoting 24 Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957), rev’d on other grounds, 25 356 U.S. 26 (1958)); see also North Carolina v. Alford, 400 U.S. 25, 31 (1970) (noting that 26 the longstanding “test for determining the validity of guilty pleas” is “whether the plea 27 represents a voluntary and intelligent choice among the alternative courses of action open 28 to the defendant”); United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998) (“A waiver 1 is voluntary if, under the totality of the circumstances, [it] was the product of a free and 2 deliberate choice rather than coercion or improper inducement.”). Although a plea may not 3 be produced “by mental coercion overbearing the will of the defendant,” a guilty plea made 4 following “the post-indictment accumulation of evidence [that] convince[s] the defendant 5 and his counsel that a trial is not worth the agony and expense to the defendant and his 6 family” is not “improperly compelled.” Brady, 397 U.S. at 750 (reasoning that “mental 7 coercion” is only found if the defendant “did not or could not, with the help of counsel, 8 rationally weigh the advantages of going to trial against the advantages of pleading guilty”). 9 First, Petitioner’s contention that that he was unaware that he could rebut Rowley’s 10 accusations is belied by his signed plea agreement. Indeed, Petitioner’s plea agreement 11 provided that he had discussed all possible defenses with his trial counsel. (ECF No. 16- 12 25 at 6.) Second, regarding the motion to suppress, Petitioner’s testimony at the hearing 13 held on his motion to withdraw his plea only concerned his mental state and did not allege 14 any police coercion. (See ECF No. 16-39.) Therefore, as this Court explains more 15 thoroughly in Ground 2(a), a motion to suppress Petitioner’s confession would not have 16 been fruitful. Third, Petitioner received a substantial benefit as the result of pleading guilty: 17 his charges were reduced from sexual assault to lewdness. See Brady, 397 U.S. at 750 18 (explaining that a guilty plea is not rendered invalid when it has been “motivated by the 19 defendant’s desire to accept the certainty or probability of a lesser penalty rather than face 20 a wider range of possibilities extending from acquittal to conviction and a higher penalty 21 authorized by law for the crime charged”). 22 Finally, Petitioner confirmed that his guilty plea was voluntary during his thorough 23 canvass by the state district court, and the state district court made specific findings that 24 Petitioner’s pleas were freely and voluntarily made. See Blackledge v. Allison, 431 U.S. 25 63, 74 (1977) (stating that the defendant’s representations, “as well as any findings made 26 by the judge accepting the plea, constitute a formidable barrier in any subsequent 27 collateral proceedings” and that “[s]olemn declarations in open court carry a strong 28 presumption of verity”); see also Muth v. Fondren, 676 F.3d 815, 821 (9th Cir. 2012) 1 (“Petitioner’s statements at the plea colloquy carry a strong presumption of truth.”); Little 2 v. Crawford, 449 F.3d 1075, 1081 (9th Cir. 2006). Accordingly, as the Nevada Supreme 3 Court reasonably determined, after “considering all of the relevant circumstances 4 surrounding” Petitioner’s plea, Petitioner fails to demonstrate that his guilty plea was not 5 entered into knowingly, intelligently, and voluntarily. Brady, 397 U.S. at 748-49. Petitioner 6 is therefore denied federal habeas relief for Ground 1. 7 B. Ground 2 8 In Ground 2, which includes three subparts, Petitioner claims that his federal 9 constitutional rights were violated because his trial counsel was ineffective. (ECF No. 14 10 at 8.) 11 In Strickland, the Supreme Court propounded a two-prong test for analysis of claims 12 of ineffective assistance of counsel requiring the petitioner to demonstrate (1) that the 13 attorney’s “representation fell below an objective standard of reasonableness,” and (2) that 14 the attorney’s deficient performance prejudiced the defendant such that “there is a 15 reasonable probability that, but for counsel’s unprofessional errors, the result of the 16 proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 17 (1984). A court considering a claim of ineffective assistance of counsel must apply a 18 “strong presumption that counsel’s conduct falls within the wide range of reasonable 19 professional assistance.” Id. at 689. The petitioner’s burden is to show “that counsel made 20 errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the 21 defendant by the Sixth Amendment.” Id. at 687. 22 Additionally, to establish prejudice under Strickland, it is not enough for the habeas 23 petitioner “to show that the errors had some conceivable effect on the outcome of the 24 proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the defendant 25 of a fair trial, a trial whose result is reliable.” Id. at 687. When the ineffective assistance of 26 counsel claim is based on a challenge to a guilty plea, the Strickland prejudice prong 27 requires the petitioner to demonstrate “that there is a reasonable probability that, but for 28 counsel’s errors, he would not have pleaded guilty and would have insisted on going to 1 trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985); see also Lafler v. Cooper, 566 U.S. 156, 163 2 (2012) (“In the context of pleas a defendant must show the outcome of the plea process 3 would have been different with competent advice.”). 4 Where a state district court previously adjudicated the claim of ineffective 5 assistance of counsel under Strickland, establishing that the decision was unreasonable 6 is especially difficult. See Harrington, 562 U.S. at 104-05. In Harrington, the United States 7 Supreme Court clarified that Strickland and § 2254(d) are each highly deferential, and 8 when the two apply in tandem, review is doubly so. Id. at 105; see also Cheney v. 9 Washington, 614 F.3d 987, 995 (9th Cir. 2010) (internal quotation marks omitted) (“When 10 a federal court reviews a state court’s Strickland determination under AEDPA, both 11 AEDPA and Strickland’s deferential standards apply; hence, the Supreme Court’s 12 description of the standard as doubly deferential.”). The Supreme Court further clarified 13 that, “[w]hen § 2254(d) applies, the question is not whether counsel’s actions were 14 reasonable. The question is whether there is any reasonable argument that counsel 15 satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 105. 16 In affirming the denial of Petitioner’s state habeas petition, the Nevada Court of 17 Appeals held:

18 Hernandez first argues the district court did not apply the proper test for 19 claims of ineffective assistance of counsel when it denied his April 17, 2013, petition and his November 6, 2013, supplemental petition. This claim lacks 20 merit. In its order denying the petition, the district court noted the test for ineffective assistance of counsel claims contained in Strickland v. 21 Washington, 466 U.S. 668, 694 (1984), and concluded Hernandez did not meet either prong of that test. The district court therefore concluded 22 Hernandez failed to meet his burden to demonstrate his counsel was 23 ineffective during the trial-level proceedings. See Means v. State, 120 Nev. 1001, 1012, 103 P.3d 25, 33 (2004). Accordingly, the district court analyzed 24 Hernandez’ claims using the proper test and we conclude Hernandez is not entitled to relief. 25 Second, Hernandez argues the district court erred in concluding his claims 26 hinged upon whether his counsel would have been successful in suppressing 27 his Idaho confession. Hernandez argues he raised multiple issues in his petition and supplemental petition, and the district court should not have 28 concluded those issues were encompassed within one claim. However, the 1 rpeectoitirodn b oerf ohries tshuisp pcloeumrte dnotaels p neotitt icoonn atasi nre cqoupirieesd obfy H NeRrnAaPn d3e0z(b’ p)(o2s)t,c (obn)(v3ic).t iAons 2 the appellant, it was Hernandez’ burden to provide this court with an adequate record for review. See McConnell v. State, 125 Nev. 243, 256 n.13, 212 P.3d 3 307, 316 n.13 (2009). Because Hernandez did not include copies of his postconviction petition or his supplemental petition, we are unable to review 4 this claim.

5 We conclude Hernandez has failed to demonstrate he is entitled to relief. 6 7 (ECF No. 19-42 at 2-3.)1 8 As further discussed below, the Nevada Supreme Court’s rejection of Petitioner’s 9 three ineffective-assistance-of-counsel claims was neither contrary to, nor an 10 unreasonable application of, clearly established law as determined by the United States 11 Supreme Court. 12 i. Ground 2(a) 13 Petitioner alleges that his trial counsel failed to move to suppress his confession or 14 inform him of his ability to do so before advising him to accept a plea offer. (ECF No. 14 15 at 9.) As was also discussed in Ground 1, Petitioner elaborates that his confession was 16 not voluntary because he was in a manic episode of his bipolar disorder, he was sleep 17 deprived, he had compromised cognitive functioning due to abuse and medical issues as 18 a child, and he had an extensive history of falsely admitting to things to avoid confrontation 19 with authority. (Id. at 9-10.) Petitioner contends that had he known there was a potential 20 winning suppression motion available, he would have refused to plead guilty and insisted 21 on litigating the motion. (ECF No. 37 at 13.) 22 At a deposition taken during Petitioner’s post-conviction proceedings, Petitioner’s 23 trial counsel testified that he was “aware of case law which indicates that in order to find 24

25 1This Court previously concluded that “[b]ecause Hernandez sufficiently described the factual and legal basis for his claims in his appellate brief, any deficiency in his 26 appendix did not deny the Nevada Court of Appeals of a fair opportunity to act on his claims.” (ECF No. 29 at 4 (citing Boyko v. Parke, 259 F.3d 781, 789 (7th Cir. 2001) (failure 27 to submit transcript in state proceedings did not render claim unexhausted; transcript did 28 not change the substance of the petitioner’s argument, but “merely supplie[d] an additional 1 an interrogation to be coercive the totality of the circumstances must show that the officer’s 2 tactics undermined the defendant’s will.” (ECF No. 18-14 at 52.) And “based on [his] own 3 assessment of . . . the interview[, he] didn’t come to th[e] conclusion” that Hernandez’s 4 confession could be meritoriously challenged. (Id. at 52-53.) Similarly, at the post- 5 conviction evidentiary hearing, Petitioner’s trial counsel testified that “there was nothing 6 coercive or suggestive about the interview.” (ECF No. 19-3 at 36.) In fact, Petitioner’s trial 7 counsel explained that Petitioner “waive[d] his right and agree[d] to voluntarily speak with 8 them,” and while “discussing the matter with them, [Hernandez] never indicated there was 9 anything done” that was coercive. (Id. at 41.) The decision to not file a motion to suppress 10 was discussed with Petitioner. (Id.) 11 Contrarily, at the post-conviction evidentiary hearing, Petitioner testified that his trial 12 counsel never “talk[ed] to [him] about suppressing th[e] confession.” (ECF No. 19-3 at 4.) 13 Petitioner testified that his confession was not voluntary because (1) he “had been off 14 medication [for his bipolar disorder] for about five years,” (2) he “was going through a 15 manic phase with [his] bipolar disorder,” (3) his daughter had just been born, and (4) he 16 confessed because he was scared. (Id. at 4-5.) 17 The admission into evidence at trial of an involuntary statement violates a 18 defendant’s right to due process under the Fourteenth Amendment. See Lego v. Twomey, 19 404 U.S. 477, 478 (1972); Jackson v. Denno, 378 U.S. 368, 376 (1964) (“It is now 20 axiomatic that a defendant in a criminal case is deprived of due process of law if his 21 conviction is founded, in whole or in part, upon an involuntary confession”); see also 22 Dickerson v. United States, 530 U.S. 428, 444 (2000) (explaining that the requirement that 23 Miranda rights be given prior to a custodial interrogation does not dispense with a due 24 process inquiry into the voluntariness of a confession). However, as Petitioner’s trial 25 counsel noted during his deposition, “coercive police activity is a necessary predicate to 26 the finding that a confession is not ‘voluntary’ within the meaning of the Due Process 27 Clause of the Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167 (1986). 28 Therefore, although a defendant’s mental state is a “significant factor in the ‘voluntariness’ 1 calculus,’” it “does not justify a conclusion that a defendant’s mental condition, by itself and 2 apart from its relation to official coercion, should ever dispose of the inquiry into 3 constitutional ‘voluntariness.’” Id. at 164. 4 Because Petitioner did not—and does not—allege any police coercion, Petitioner’s 5 trial counsel accurately testified that a motion to suppress his confession would likely have 6 been futile. As such, Petitioner fails to establish that his trial counsel acted deficiently in 7 not filing the motion prior to advising him to plead guilty. See Strickland, 466 U.S. at 688; 8 see also Premo v. Moore, 562 U.S. 115, 124 (2011) (determining that the petitioner’s 9 counsel’s justification for not filing a motion to suppress—“that suppression would have 10 been futile—confirms that his representation was adequate under Strickland”); McMann v. 11 Richardson, 397 U.S. 759, 772 (1970) (“[A] plea of guilty in a state court is not subject to 12 collateral attack in a federal court on the ground that it was motivated by a coerced 13 confession unless the defendant was incompetently advised by his attorney.”). 14 Accordingly, because Petitioner fails to support his ineffective-assistance-of-trial-counsel 15 claim, and because the Nevada Court of Appeals reasonably denied Petitioner relief, 16 Petitioner is denied federal habeas relief for Ground 2(a). 17 ii. Ground 2(b) 18 Petitioner alleges that his trial counsel failed to adequately investigate prior to 19 advising him to plead guilty. (ECF No. 14 at 11.) Petitioner contends that an adequate 20 investigation would have revealed that his accusers—the victim’s father’s mother and 21 sister—may have coached the victim into identifying him as her abuser to shift any blame 22 away from the victim’s father or to assist the victim’s father in his custody dispute with the 23 victim’s mother. (Id. at 11-12.) Petitioner also contends that an adequate investigation may 24 have shown that someone else abused the victim, such as a teenage boy or one of the 25 victim’s father’s associates. (Id. at 12.) 26 During the victim’s forensic interview, in addition to discussing the sexual contact 27 Petitioner had with her, the victim “reported that she ‘reached’ her mouth to a teenage 28 boy’s pee pee while they were ‘under his mom’s work.’” (ECF No. 17-31 at 43-44.) The 1 victim indicated that “his mom had a candy store in the front of her house.” (Id. at 44.) 2 Detective William Dawson testified at Petitioner’s sentencing hearing that Rowley, the 3 victim’s grandmother, voiced concerns about “an unnamed juvenile male” but that he “was 4 unable to locate any further information on” that person. (ECF No. 17-2 at 23-24, 27.) And 5 in addition to this juvenile male, Dawson also testified that Rowley, who was at least initially 6 uncertain about who might have been sexually abusing the victim, had voiced concerns 7 about “unsavory” individuals associated with the victim’s mother and father. (Id. at 25; see 8 also ECF No. 17-31 at 41.) 9 At a deposition taken during Petitioner’s post-conviction proceedings, Petitioner’s 10 trial counsel testified that he did not do any investigating beyond personally “viewing the 11 physical layout of” the candy store where the victim alleged that she had sexual contact 12 with the juvenile male. (See ECF No. 18-14 at 51.) And although Petitioner’s trial counsel 13 “recall[ed] contacting [his] investigator . . . about the case,” he did not request that his 14 investigator conduct any type of investigation “based on the direction that Mr. Hernandez 15 wanted to go with the case.” (Id.) Indeed, Petitioner “never pointed to exculpatory 16 witnesses,” and until after his arraignment, Petitioner never tried to “undercut the notion 17 that he didn’t commit this crime.” (Id. at 64-65.) Moreover, Petitioner “wanted to accept 18 responsibility, to not put . . . his stepdaughter essentially through” the trial process. (Id. at 19 53.) 20 Similarly, at the post-conviction evidentiary hearing, Petitioner’s trial counsel 21 testified that although he reviewed witness interviews conducted by law enforcement, he 22 did not “sit[ ] down with any witness and interview[ ] them” because, at that stage of the 23 proceedings prior to his plea, Petitioner was not claiming that any of the evidence obtained 24 against him was untrue. (ECF No. 19-3 at 42-43.) And regarding the juvenile male, 25 Petitioner’s trial counsel explained that this allegation occurred after Petitioner’s abuse of 26 the victim occurred, and as such, Petitioner’s trial counsel felt that evidence regarding the 27 juvenile male could be viewed as Petitioner grooming the victim to be abused by other 28 individuals. (Id.) 1 Defense counsel has a “duty to make reasonable investigations or to make a 2 reasonable decision that makes particular investigations unnecessary.” Strickland, 466 3 U.S. at 691. Additionally, “[i]n any ineffectiveness case, a particular decision not to 4 investigate must be directly assessed for reasonableness in all the circumstances, 5 applying a heavy measure of deference to counsel’s judgments.” Id. This investigatory 6 duty includes investigating the defendant’s “most important defense” (Sanders v. Ratelle, 7 21 F.3d 1446, 1457 (9th Cir. 1994)), and investigating and introducing evidence that 8 demonstrates factual innocence or evidence that raises sufficient doubt about the 9 defendant’s innocence. See Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999). 10 “[I]neffective assistance claims based on a duty to investigate must be considered in light 11 of the strength of the government’s case.” Eggleston v. United States, 798 F.2d 374, 376 12 (9th Cir. 1986). 13 Petitioner fails to demonstrate that his trial counsel acted deficiently in carrying out 14 his investigative duties. See Strickland, 466 U.S. at 688. Indeed, given that Petitioner did 15 not refute the evidence against him and wanted to plead guilty, it was reasonable under 16 the circumstances for Petitioner’s trial counsel to have decided that investigating possible 17 defenses was unnecessary. And even if Petitioner’s trial counsel acted deficiently, 18 Petitioner fails to demonstrate prejudice. Id. at 694. 19 First, Petitioner fails to demonstrate that an investigation into the victim’s father’s 20 associates or the victim’s father’s mother and sister would have led to favorable, 21 admissible evidence. Second, a thorough law enforcement interview of the candy store 22 owner revealed that the juvenile male had moved and was not able to be found and that it 23 was “unlikely that any sexual activity between the male juvenile and [the victim] could have 24 happened in the manner that [the victim] alleged.” (ECF No. 18-14 at 75.) It is therefore 25 mere speculation that further investigation by his trial counsel would have resulted in 26 Petitioner not pleading guilty and insisting on going to trial. See Hill, 474 U.S. at 59; see 27 also Djerf v. Ryan, 931 F.3d 870, 881 (9th Cir. 2019) (“[P]rejudice is not established by 28 mere speculation.”). Accordingly, because Petitioner fails to support his ineffective- 1 assistance-of-trial-counsel claim, and because the Nevada Court of Appeals reasonably 2 denied Petitioner relief, Petitioner is denied federal habeas relief for Ground 2(b). 3 iii. Ground 2(c) 4 Petitioner alleges that his trial counsel failed to provide him with discovery in a 5 timely fashion so that he could make a knowing, intelligent, and voluntary decision about 6 whether to proceed with a plea. (ECF No. 14 at 13.) 7 At the post-conviction evidentiary hearing, Petitioner testified that he “didn’t have 8 knowledge to be able to make an informed decision” regarding his plea because he “did 9 not receive discovery until after [he] entered [his] plea of guilty.” (ECF No. 19-3 at 7, 10.) 10 Petitioner, however, admitted that his trial counsel did “bring stuff over to [him] before [his] 11 plea hearing.” (Id. at 26.) And Petitioner’s trial counsel testified that “[d]iscovery rarely 12 comes all at once. It comes in waves,” explaining that “[y]ou don’t have an absolute right 13 of discovery at the preliminary hearing stage.” (Id. at 35.) Petitioner’s trial counsel 14 “recall[ed] going over discovery items with Mr. Hernandez” on “multiple” occasions. (Id.) 15 Other than pointing to his own self-serving testimony from the postconviction 16 evidentiary hearing, Petitioner fails to present any evidence that his trial counsel failed to 17 provide him discovery in a timely fashion. See, e.g., Womack v. Del Papa, 497 F.3d 998, 18 1004 (9th Cir. 2007) (rejecting an ineffective-assistance-of-trial-counsel claim, in part, 19 because “[o]ther than [the petitioner]’s own self-serving statement, there [was] no evidence 20 that his attorney” acted the way the petitioner alleged); see also Jones v. Gomez, 66 F.3d 21 199, 205 (9th Cir. 1995) (denying habeas relief because the petitioner’s “conclusory 22 allegations did not meet the specificity requirement”). 23 Moreover, the state district court found Petitioner’s trial counsel credible (see ECF 24 No. 19-3 at 51), and Petitioner’s trial counsel’s testimony directly contradicted Petitioner’s 25 testimony regarding the providing of discovery items. See Rice v. Collins, 546 U.S. 333, 26 341-42 (2006) (“Reasonable minds reviewing the record might disagree about the 27 prosecutor’s credibility, but on habeas review that does not suffice to supersede the trial 28 court’s credibility determination.”). 1 Because Petitioner fails to demonstrate that his trial counsel acted deficiently (se 2 || Strickland, 466 U.S. at 688), and because the Nevada Court of Appeals reasonably □□□□□ 3 || Petitioner relief, Petitioner is denied federal habeas relief for Ground 2(c).? V. CERTIFICATE OF APPEALABILITY 5 This is a final order adverse to Petitioner. Rule 11 of the Rules Governing □□□□□□□ 6 || 2254 Cases requires this Court to issue or deny a certificate of appealability (“COA”). Thi 7 || Court therefore has sua sponte evaluated the claims within the petition for suitability fo 8 || the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864 9 || 65 (9th Cir. 2002). Under § 2253(c)(2), a COA may issue only when the petitioner “ha 10 || made a substantial showing of the denial of a constitutional right.” With respect to claim: 11 || rejected on the merits, a petitioner “must demonstrate that reasonable jurists would fine 12 || the district court’s assessment of the constitutional claims debatable or wrong.” Slack \ 13 || McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & □□□ 14 || (1983)). Applying this standard, the Court finds a certificate of appealability is unwarrantec 15 VI. CONCLUSION 16 It is therefore ordered that the petition for a writ of habeas corpus under 28 U.S.C 17 || § 2254 (ECF No. 14) is denied. 18 It is further ordered that Petitioner is denied a certificate of appealability. 19 The Clerk of Court is directed to enter judgment accordingly and close this case. 20 DATED THIS 1* Day of June 2021. 21 / ( f __ 22 MIRANBA | DU 23 CHIEF UNITED STATES DISTRICT JUDGE 24 was Petitioner requests that the Court “[c]onduct an evidentiary hearing at which proc 25 || may be offered concerning the allegations in [his] amended petition and any defenses tha may be raised by respondents.” (ECF No. 14 at 15.) Petitioner fails to explain wha 26 || evidence would be presented at an evidentiary hearing, especially since a □□□□□□□□ 97 evidentiary hearing was held before the state district court. Moreover, the Court ha: already determined that Petitioner is not entitled to relief, and neither further factue 2g || development nor any evidence proffered at an evidentiary hearing would affect the Court’: reasons for denying relief. Petitioner's request for an evidentiary hearing is denied.