1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 ANDRE KING-HARDIMAN, Case No. 3:19-cv-00484-ART-CSD 4 Petitioner, ORDER 5 v.
6 NETHANJAH BREITENBACH,1 et al., 7 Respondents. 8
9 Petitioner Andre King-Hardiman, a state prisoner who pleaded guilty to 10 murder, home invasion, burglary, and robbery and was sentenced to, inter alia, 11 life imprisonment without the possibility of parole, filed a first-amended petition 12 for writ of habeas corpus under 28 U.S.C. § 2254. (ECF Nos. 19, 20-14.) This 13 matter is before this court for adjudication of the merits of the remaining 14 grounds2 in the first-amended petition, which allege that (1) his plea was invalid 15 and (2) his counsel failed to adequately inform him about the direct consequences 16 of his plea. (ECF No. 19.) For the reasons discussed below, this court grants the 17 first-amended petition. 18 I. BACKGROUND 19 A. Factual background3 20 J.K., who was six years old at the time of the grand jury proceedings in this 21
22 1The state corrections department’s inmate locator page states that King- 23 Hardiman is incarcerated at Lovelock Correctional Center. Nethanjah Breitenbach is the current warden for that facility. At the end of this order, this 24 court directs the clerk to substitute Nethanjah Breitenbach as a respondent for Respondent Gittere. See Fed. R. Civ. P. 25(d). 25 2This court previously dismissed ground 2 as untimely. (ECF No. 56.) 26 3This court makes no credibility findings or other factual findings regarding the truth or falsity of this evidence from the grand jury proceedings. This court’s 27 summary is merely a backdrop to its consideration of the issues presented in the first-amended petition. 28 1 case, testified that her father, King-Hardiman, rang the doorbell of her mother’s 2 house on April 10, 2008. (ECF No. 36-2 at 27, 33.) J.K.’s mother, Sabrina King 3 (hereinafter “Sabrina”), opened the door and then quickly closed it. (Id. at 33.) 4 King-Hardiman kicked the door open, and Sabrina ran down the hallway, 5 eventually tripping and falling to the ground. (Id. at 33–34.) King-Hardiman 6 choked Sabrina, dragged her into another room, and placed her on a couch. (Id. 7 at 35–36.) According to Detective Martin Wildeman, during J.K.’s interview with 8 police, she also “mentioned that part of the interaction [between her mother and 9 father] occurred in her bedroom, that her mom in trying to get away had actually 10 crawled under her bed attempting to hide from her father and that he had pulled 11 her out.” (Id. at 79, 81.) A.S., Sabrina’s fourteen-year-old daughter and J.K.’s 12 half-sister, testified that when she returned home from school on April 10, 2008, 13 she found the front door of her house broken, Sabrina’s jewelry box and cell 14 phone broken, two televisions and a computer missing, and Sabrina’s purse’s 15 contents spread on the kitchen counter. (Id. at 10, 12, 19, 22, 23.) 16 Detective Dean Raetz testified that the fire department received a report of 17 “a fire in the inside [of] the Nevada Power substation . . . [and] discovered [there] 18 was a body on fire.” (Id. at 59–60.) Detective Raetz responded to the scene and 19 determined that an accelerant had been poured on the body and “was trailed 20 away from the body in order to set the fire a distance away.” (Id. at 62.) The body 21 was missing its hands, and the face had been mutilated.4 (Id. at 63.) Dr. 22 Jacqueline Benjamin, a medical examiner, performed an autopsy of the body, 23 which was later determined to be Sabrina, and determined that Sabrina died as 24 a result of strangulation, that the disfiguring injuries made to her face and the 25 severance of her hands were done after her death, and that she was already dead 26 at the time her body was lit on fire. (Id. at 47–48.) 27 4King-Hardiman testified during his state post-conviction proceedings that he cut 28 Sabrina’s jaw off with a hatchet. (ECF No. 43-16 at 14.) 1 Detective Teresa Kyger testified that a search of the residence that King- 2 Hardiman was staying at revealed “a white grocery bag wrapped around an ax 3 that was all covered in blood.” (Id. at 54–55.) Two human hands were found inside 4 the bags. (Id. at 55.) 5 B. Procedural background 6 King-Hardiman was indicted for murder, invasion of the home, burglary, 7 and robbery. (ECF No. 36-3.) For each count, King-Hardiman was charged with 8 committing the felony in violation of a domestic-violence protection order. (ECF 9 No. 36-14.) The prosecution filed a notice of intent to seek the death penalty. 10 (ECF No. 36-7.) On February 11, 2014, the day that the jury trial was scheduled 11 to begin, King-Hardiman and the prosecution reached a guilty plea agreement. 12 (ECF No. 20-4.) King-Hardiman agreed to plead guilty to the charges in return for 13 the prosecution withdrawing its notice of intent to seek the death penalty. (Id.) 14 King-Hardiman pleaded guilty, and the trial court accepted his plea. (Id. at 5, 15.) 15 On May 21, 2014, King-Hardiman filed pro se motions to withdraw his plea 16 and dismiss his counsel. (ECF Nos. 20-5, 20-6.) The state court denied King- 17 Hardiman’s motions. (ECF No. 20-7.) On June 13, 2014, King-Hardiman’s 18 counsel filed a motion to withdraw. (ECF No. 20-8.) The state court denied the 19 motion. (ECF No. 20-9.) On July 31, 2014, the state court entered a judgment of 20 conviction, sentencing King-Hardiman to life imprisonment without the 21 possibility of parole for murder, 48 to 120 months for home invasion, 48 to 120 22 months for burglary, and 72 to 180 months for robbery. (ECF No. 20-14.) All 23 sentences were ordered to run concurrently. (Id.) 24 King-Hardiman appealed. (ECF No. 42-9.) On September 15, 2015, the 25 Nevada Court of Appeals affirmed. (ECF No. 21-3.) On December 2, 2016, King- 26 Hardiman filed a state post-conviction habeas corpus petition. (ECF No. 21-6.) 27 The state district court denied the petition. (ECF No. 21-9.) King-Hardiman 28 appealed. (ECF No. 44-1.) On July 17, 2019, the Nevada Court of Appeals 1 affirmed. (ECF No. 21-13.) 2 King-Hardiman’s pro se federal habeas corpus petition was received by this 3 court on August 13, 2019. (ECF No. 1-1 at 1.) On January 9, 2020, the court 4 dismissed the action because King-Hardiman had not paid the filing fee. (ECF 5 No. 7.) King-Hardiman paid the filing fee and filed another pro se federal habeas 6 corpus petition on February 3, 2020. (ECF Nos. 9, 10.) On February 14, 2020, 7 the court reopened this action. (ECF No. 11.) The court appointed counsel to 8 represent King-Hardiman, and King-Hardiman filed his instant counseled first- 9 amended petition on May 20, 2020. (ECF No. 19.) Respondents moved to dismiss 10 the first-amended petition on August 18, 2021. (ECF No. 35.) This court granted 11 the motion, in part, dismissing ground 2 as untimely. (ECF No. 56.) Respondents 12 answered the first-amended petition on February 14, 2023. (ECF No. 68.) King- 13 Hardiman replied on August 4, 2023. (ECF No. 77.) 14 II. GOVERNING STANDARD OF REVIEW 15 28 U.S.C. § 2254(d) sets forth the standard of review generally applicable 16 in habeas corpus cases under the Antiterrorism and Effective Death Penalty Act 17 (“AEDPA”):
18 An application for a writ of habeas corpus on behalf of a person in 19 custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits 20 in State court proceedings unless the adjudication of the claim –
21 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 22 established Federal law, as determined by the Supreme 23 Court of the United States; or
24 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the 25 evidence presented in the State court proceeding. 26 27 A state court decision is contrary to clearly established Supreme Court 28 precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a 1 rule that contradicts the governing law set forth in [the Supreme Court’s] cases” 2 or “if the state court confronts a set of facts that are materially indistinguishable 3 from a decision of [the Supreme] Court.” Lockyer v. Andrade, 538 U.S. 63, 73 4 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000), and citing Bell 5 v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an unreasonable 6 application of clearly established Supreme Court precedent within the meaning 7 of 28 U.S.C. § 2254(d) “if the state court identifies the correct governing legal 8 principle from [the Supreme] Court’s decisions but unreasonably applies that 9 principle to the facts of the prisoner’s case.” Id. at 75 (quoting Williams, 529 U.S. 10 at 413). “The ‘unreasonable application’ clause requires the state court decision 11 to be more than incorrect or erroneous. The state court’s application of clearly 12 established law must be objectively unreasonable.” Id. (quoting Williams, 529 13 U.S. at 409–10) (internal citation omitted). 14 The Supreme Court has instructed that “[a] state court’s determination that 15 a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists 16 could disagree’ on the correctness of the state court’s decision.” Harrington v. 17 Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 18 664 (2004)). The Supreme Court has stated “that even a strong case for relief does 19 not mean the state court’s contrary conclusion was unreasonable.” Id. at 102 20 (citing Lockyer, 538 U.S. at 75); see also Cullen v. Pinholster, 563 U.S. 170, 181 21 (2011) (describing the standard as a “difficult to meet” and “highly deferential 22 standard for evaluating state-court rulings, which demands that state-court 23 decisions be given the benefit of the doubt” (internal quotation marks and 24 citations omitted)). 25 III. DISCUSSION 26 A. Ground 1—validity of guilty plea 27 In ground 1, King-Hardiman alleges that he entered a plea that was not 28 voluntary, knowing, or intelligent in violation of his right to due process under 1 the Fifth and Fourteenth Amendments. (ECF No. 19 at 17.) King-Hardiman 2 explains that (1) the state court failed to accurately advise him of the range of 3 punishments allowable under his plea, and (2) he did not comprehend the nature 4 of his guilty plea because no one adequately explained the elements and facts 5 supporting the first-degree murder count to him. (ECF No. 77 at 6.) 6 1. Background information 7 As noted previously, King-Hardiman’s capital murder trial was scheduled 8 to begin on February 11, 2014. (ECF No. 20-4.) Before the jury was called in, the 9 parties notified the state court that they had come to a plea agreement resolving 10 the case.5 (Id. at 3.) King-Hardiman’s counsel put the terms of the negotiation on 11 the record: “in exchange for Mr. King entering a plea of guilty to the counts 12 contained in the . . . Amended Superseding Indictment . . . , the State will 13 withdraw its notice of intent to seek the death penalty.” (Id.) The parties also 14 “reserved the right to argue as to what the appropriate sentence would be within 15 the confines of a first degree murder count as well as the enhancements.” (Id.) 16 The state court confirmed that (1) King-Hardiman reviewed the amended 17 superseding indictment and (2) King-Hardiman’s counsel answered any 18 questions he had about the elements of the offenses in the amended superseding 19 indictment. (Id. at 4–5.) King-Hardiman then entered guilty pleas to murder, 20 invasion of the home, burglary, and robbery. (Id. at 5.) 21 Next, the state court started its canvass to determine whether King- 22 Hardiman’s guilty pleas were freely, voluntarily, and knowingly entered. (Id.) After 23 King-Hardiman stated that no one had coerced him to plead guilty, the state court 24 asked him whether any promises had been made other than the ones in the guilty 25 plea agreement. (Id.) King-Hardiman answered, “I was under the impression I’d
26 5It appears that the plea offer was not made to King-Hardiman until the morning 27 of February 11, 2014, and that it was the first plea offer made in this case. (See ECF No. 20-12 at 3.) 28 1 be facing 20 to 50 or 20 to life. That’s why I signed the deal.” (Id.) The following 2 colloquy then occurred:
3 THE COURT: Well, we’re going to get there in a second 4 ‘cause I have to - - or we’re going to [go] through what the penalty ranges are. 5 THE DEFENDANT: And nothing more. THE COURT: Yes. The - - they’ve removed the death 6 penalty pursuant to negotiations. They cannot and will not seek the death penalty. 7 THE DEFENDANT: No life with and no life without. 8 THE COURT: I don’t know. Is that part of the negotiations? 9 [PROSECUTOR]: No, Your Honor. [DEFENSE COUNSEL]: The State has reserved the right to argue - - 10 THE DEFENDANT: Then I take my - - 11 [DEFENSE COUNSEL]: - - for life without the possibility. THE DEFENDANT: Then I take it back. I’m not taking life. 12 [DEFENSE COUNSEL]: Well, it’s up to the Judge. THE COURT: Okay. It’s up to you. This is your life. 13 THE DEFENDANT: Uh-hum. 14 THE COURT: Understand that the negotiations contemplate a withdrawal of the death 15 penalty but the minimum range on first degree murder is 20 to 50, a definite term; a 16 life - - 20 on the bottom, a life with the possibility of parole; or 20 on the bottom, 17 life without the possibility of parole. Those 18 are the range of punishments, but the death penalty is off the table. 19 THE DEFENDANT: I don’t deserve life at any point. THE COURT: Okay. I can’t accept the plea. He’s refusing 20 to agree to the terms of it. We have a jury in 21 the jury room. [DEFENSE COUNSEL]: Could we have a moment, Your Honor - - 22 THE COURT: Absolutely. [DEFENSE COUNSEL]: - - with our client? Thank you. 23 THE COURT: Okay. Mr. King, talk to your lawyers, 24 because understand that there’s no decisions made on the penalty. There’s 25 going to be - - the common practice in these situations is to have a penalty hearing and 26 everybody presents evidence and a decision is made at that point. But you need to 27 understand that those are the potential 28 options and all of them would be on the 1 Frankly, prosecutors, why don’t you give 2 them a few a [sic] minutes, too; all right? (Id. at 5–7.) A recess was taken from 9:14 a.m. to 9:31 a.m. (Id. at 7.) 3 After the recess, the state court explained that King-Hardiman “ha[d] to 4 understand that no one can promise [him] an outcome here” and “[t]hat the range 5 of punishments are three and they’ll all be on the table equally as a function of 6 [the] sentencing hearing.” (Id.) The state court then explained: 7
8 So when we left off, you were saying: Judge, I don’t think this is a life case or I should have a life sentence. But you should understand 9 that that’s the potential. The range of punishment on a murder, first degree murder, is 20 to 50 years, it’s 20 to life with the possibility of 10 parole or it’s 20 to life without the possibility of parole and no one 11 can promise you any outcome. This is obviously a non-probational offense on the murder. So the minimum you’re looking at is 20 on 12 the bottom and a potential life without. 13 (Id. at 7–8.) The state court then asked if King-Hardiman still wanted the state 14 court to accept his guilty plea, and King-Hardman said yes. (Id. at 8.) King- 15 Hardiman then answered in the affirmative when asked the following questions: 16 whether he signed the plea agreement; whether he understood the plea 17 agreement; whether his counsel answered his questions about the plea 18 agreement; and whether he understood that the next step would be sentencing 19 in which the state court would “make a decision whether it’s a fixed term, 20 to 20 50, whether it’s a life with or it’s a life without” sentence. (Id. at 8–10.) After going 21 through the other charges and sentencing ranges, the state court found that 22 King-Hardiman’s pleas were entered into freely and voluntarily and that King- 23 Hardiman “appear[s] to understand the . . . nature of the offenses . . . [and] the 24 consequences of the pleas.” (Id. at 15.) 25 King-Hardiman’s written guilty plea agreement was filed in open court 26 during the change of plea. (ECF No. 20-3.) The written guilty plea agreement 27 provided that “[t]he State agrees to retain the right to argue at sentenc[ing], 28 including to argue for life without the possibility of parole” on the murder count, 1 but “the State will not seek the death penalty.” (Id. at 2.) The guilty plea agreement 2 also provided the following possible sentences for the murder charge: (1) “life with 3 the possibility of parole with parole eligibility beginning at twenty (20) years,” (2) 4 a “definite term of fifty (50) years with parole eligibility beginning at twenty years 5 (20) years,” or (3) “life without the possibility of parole.” (Id. at 3.) Within the plea 6 agreement, King-Hardiman agreed that he had “not been promised or guaranteed 7 any particular sentence by anyone” and that he knew that his “sentence [was] to 8 be determined by the Court within the limits prescribed by statute.” (Id. at 5.) 9 Three months later, on May 21, 2014, King-Hardiman filed a pro se motion 10 to withdraw his guilty plea. (ECF No. 20-5.) In his motion, King-Hardiman alleged 11 that his counsel coerced him to plead guilty by explaining that the state court 12 judge was biased and would not give him a fair trial. (Id. at 3.) The state court 13 denied the motion without holding an evidentiary hearing. (ECF No. 20-7 at 9.) 14 2. State court determination 15 In affirming King-Hardiman’s judgment of conviction, the Nevada Court of 16 Appeals held:
17 Appellant Andre Hardiman claims the district court abused its 18 discretion by denying his motion to withdraw his guilty plea without a full review of the record and an evidentiary hearing. 19 A defendant may move to withdraw a guilty plea before sentencing, NRS 176.165, and the district court may, in its 20 discretion, grant such a motion for any substantial reason that is “fair and just,” State v. Second Judicial Dist. Court (Bernardelli), 85 21 Nev. 381, 385, 455 P.2d 923, 926 (1969). To this end, the Nevada 22 Supreme Court has recently ruled that “the district court must consider the totality of the circumstances to determine whether 23 permitting withdrawal of a guilty plea before sentencing would be fair and just,” and it has disavowed the standard previously announced 24 in Crawford v. State, 117 Nev. 718, 30 P.3d 1123 (2001), which 25 focused exclusively on whether the plea was knowing, voluntarily, and intelligently made. Stevenson v. State, 131 Nev. __, __, __ P.3d 26 __, __ (Adv. Op. No. 61, August 13, 2015 at 8). In making its determination, the district court is required to conduct an 27 evidentiary hearing if a defendant raises claims that are not belied 28 by the record and would, if true, entitle him to relief. Cf. Hargrove v. 1 Here, Hardiman filed a pro se motion to withdraw his guilty 2 plea, which alleged that defense counsel coerced him into pleading guilty to first-degree murder. The district court considered the 3 parties’ pleadings, the documents on file, and a video recording of the plea canvass before making the following findings: Hardiman 4 acknowledged that he carefully read the written plea agreement, defense counsel answered his questions about the agreement, and 5 he signed the agreement voluntarily and did not act under duress or 6 coercion. Judge Barker thoroughly canvassed Hardiman regarding his plea. Hardiman orally indicated he was not forced or coerced into 7 entering the plea. After defense counsel cleared-up some confusion about the sentencing possibilities, Hardiman stated that he wished 8 to proceed with the plea canvass. Hardiman was actively engaged 9 during the plea canvass and asked numerous questions. Hardiman’s subsequent allegations of coercion are belied by the record and no 10 grounds exist for conducting an evidentiary hearing. And even if the statements he attributed to defense counsel were made, they did not 11 constitute coercion. 12 The record supports the district court’s findings and the findings support our conclusion that Hardiman failed to present a 13 fair and just reason for withdrawing his guilty plea. See generally Gardner v. State, 91 Nev. 443, 446, 537 P.2d 469, 471 (1975) 14 (defendant bears the burden of proving he in fact was coerced). Accordingly, the district court did not abuse its discretion in this 15 regard. 16 (ECF No. 21-3 at 3–5.) 17 3. De novo review 18 First, King-Hardiman argues that ground 1 should be reviewed de novo 19 because (1) the state court only adjudicated his claim that the state court 20 erroneously denied his motion to withdraw his guilty plea before sentencing but 21 did not address his separate claim that his plea was not knowing, intelligent, and 22 voluntary, and (2) rather than analyzing whether his plea was knowing, 23 voluntary, and intelligent based on the totality of the circumstances, the Nevada 24 Court of Appeals only considered whether he was coerced into pleading guilty. 25 (ECF No. 77 at 12.) The Nevada Supreme Court explained in Stevenson v. State 26 that in determining whether to permit withdrawal of a guilty plea, the state court 27 must not “exclusive[ly] focus on the validity of the plea” but “must consider the 28 1 totality of the circumstances to determine whether permitting withdrawal of a 2 guilty plea before sentencing would be fair and just.” 354 P.3d 1277, 1281 (Nev. 3 2015). Because the validity of a plea—King-Hardiman’s instant constitutional 4 claim—is subsumed within the “fair-and-just” analysis used to determine 5 whether a guilty plea should be permitted to be withdrawn, it is implicit that the 6 Nevada Court of Appeals adjudicated the validity of King-Hardiman’s plea on the 7 merits in determining that the state court did not abuse its discretion in denying 8 the motion to withdraw the guilty plea. Richter, 562 U.S. at 99 (“When a federal 9 claim has been presented to a state court and the state court has denied relief, it 10 may be presumed that the state court adjudicated the claim on the merits in the 11 absence of any indication or state-law procedural principles to the contrary.”). 12 Second, King-Hardiman argues that the Nevada Court of Appeals’ finding 13 that he was thoroughly canvassed is belied by the record. (ECF No. 77 at 13–14.) 14 As will be discussed further below, the state court’s canvass distorted and created 15 confusion regarding the possible sentences King-Hardiman faced for a first- 16 degree murder conviction. Given this blunder, the court finds that the Nevada 17 Court of Appeals’ finding that the state court “thoroughly canvassed Hardiman 18 regarding his plea” was based on an unreasonable determination of the facts. As 19 such, ground 1 will be reviewed de novo. See Panetti v. Quarterman, 551 U.S. 20 930, 948 (2007) (“As a result of [the state court’s] error, our review of petitioner’s 21 underlying . . . claim is unencumbered by the deference AEDPA normally 22 requires”). 23 4. Standard for a valid guilty plea 24 The federal constitutional guarantee of due process requires that a guilty 25 plea be knowing, intelligent, and voluntary. Boykin v. Alabama, 395 U.S. 238, 26 242 (1969). “The longstanding test for determining the validity of a guilty plea is 27 ‘whether the plea represents a voluntary and intelligent choice among the 28 alternative courses of action open to the defendant.’” Hill v. Lockhart, 474 U.S. 1 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). For a plea 2 to be knowing, intelligent and voluntary, the defendant must be advised of the 3 direct consequences of the plea. Brady v. United States, 397 U.S. 742, 755 (1970). 4 A direct consequence has “a definite, immediate and largely automatic effect on 5 the range of the defendant’s punishment[.]” Torrey v. Estelle, 842 F.2d 234, 236 6 (9th Cir. 1988). “Before a court may accept a defendant’s guilty plea, the 7 defendant must be advised of the ‘range of allowable punishment’ that will result 8 from his plea.” Id. at 235. The validity of a “plea can be determined only by 9 considering all of the relevant circumstances surrounding it.” Brady, 397 U.S. at 10 749. 11 5. Analysis 12 A person convicted of first-degree murder in Nevada faces the following 13 sentencing possibilities under Nev. Rev. Stat. § 200.030(4): (a) by death, or (b) by 14 imprisonment (1) for life without the possibility of parole, (2) for life with the 15 possibility of parole, with parole eligibility beginning after 20 years, or (3) for a 16 definite term of 20 to 50 years. The written plea agreement accurately reflected 17 these sentencing possibilities. (See ECF No. 20-3 at 3.) However, importantly, 18 during the plea canvass, the state court clumsily and imprecisely relayed the first 19 imprisonment option on two separate occasions. During King-Hardiman’s plea 20 canvass, the state court stated the first imprisonment option—life without the 21 possibility of parole—as follows: (1) “20 on the bottom, life without the possibility 22 of parole,” and (2) “it’s 20 to life without the possibility of parole.” (ECF No. 20-4 23 at 6, 8.) Because life without the possibility of parole means exactly that—the 24 impossibility of parole at any point in time—the state court’s inclusion of 20 years 25 into its explanation of life without the possibility of parole is nonsensical, 26 confusing, and troubling.6 Indeed, due to the similarities with which the state 27 6The state court also said that “the minimum [King-Hardiman was] looking at is 28 1 court described life with the possibility of parole and life without the possibility 2 of parole—i.e., discussing parole eligibility after the 20-year imprisonment mark 3 for both life imprisonment possibilities—it makes sense that King-Hardiman 4 would have been confused about whether he faced the possibility of spending the 5 rest of his life in prison. This issue is compounded by the fact that King-Hardiman 6 was clearly opposed to accepting a plea agreement containing a life without the 7 possibility of parole possible sentence, adamantly telling the state court on the 8 record during his canvass that “I’m not taking life.” (ECF No. 20-4 at 6.) 9 This court acknowledges the other circumstances surrounding King- 10 Hardiman’s plea, including, inter alia: King-Hardiman admitted that he read and 11 signed the written guilty plea agreement, the written guilty plea agreement 12 accurately outlined the first imprisonment option, King-Hardiman spoke with his 13 trial counsel for approximately 17 minutes during a break in the change of plea 14 hearing for them to allegedly discuss the sentencing options, and the state court 15 made findings on the record that King-Hardiman’s plea was freely, voluntarily, 16 and intelligently made.7 Although these circumstances are certainly relevant in 17 terms of assessing the validity of King-Hardiman’s guilty plea, when considered 18 in conjunction with the material circumstances of the state court’s disconcerting 19 statements at the plea canvass and King-Hardiman’s statements on the record at 20 the plea canvass that he refused to plead guilty if he faced the possibility of life 21 without the possibility of parole, this court is persuaded that King-Hardiman did 22 not have sufficient awareness of the likely consequences of his plea. Accordingly, 23 20 on the bottom and a potential life without.” (ECF No. 20-4 at 8.) Although this 24 could be construed as correctly relaying the overall range of possible penalties King-Hardiman faced, it is troubling that the state court did not include the word 25 “maximum” as well, as this would have highlighted that the life without the possibility of parole possible penalty was not tied to the 20 year “bottom.” 26 7Regarding this last point, this court notes that the state court’s statement 27 regarding the intelligent nature of King-Hardiman’s plea was less than convincing, finding only that King-Hardiman “does appear to understand the . . . 28 the consequences of the pleas.” (ECF No. 20-4 at 15 (emphasis added).) 1 based on the record and considering the totality of the circumstances 2 surrounding King-Hardiman’s plea, King-Hardiman demonstrates that his guilty 3 plea was not knowing, intelligent, and voluntary. Boykin, 395 U.S. at 242.8 King- 4 Hardiman is entitled to federal habeas relief for ground 1. 5 B. Ground 3—effective assistance of counsel regarding guilty plea 6 In ground 3, King-Hardiman alleges that his counsel failed to adequately 7 advise him about the direct consequences of his plea, denying him the effective 8 assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments. 9 (ECF No. 19 at 21.) Encompassed within this ground are the following failures by 10 King-Hardiman’s counsel: failing to correct the state court’s inaccurate 11 statements during the plea canvass, failing to ask for a continuance—not just a 12 recess—in the proceedings to allow more time to discuss King-Hardiman’s plea 13 with him, and allowing King-Hardiman to plead guilty when he was adamantly 14 opposed to doing so when it would mean he was exposed to a life without the 15 possibility of parole sentence. (ECF No. 77 at 17–19.) 16 1. Background information 17 On March 15, 2018, during an evidentiary hearing on his state post- 18 conviction petition, King-Hardiman testified, inter alia, that (1) he only had “about 19 30 to 45 minutes” to review the written guilty plea agreement before entering his 20 guilty plea, (2) he agreed to enter into the guilty plea agreement because he “got 21 overwhelmed with emotion” and did not want his daughter to have to testify and 22 “relive everything,” (3) “in [his] mind [he believed he] committed manslaughter” 23 so he “didn’t deserve life,” (4) although he was only presented with the plea offer 24 the first morning of trial, he had discussed the possible sentences he faced under 25 8Because the court finds that King-Hardiman demonstrates that his guilty plea 26 was not knowing, intelligent, and voluntary because he did not have sufficient 27 awareness of the likely consequences of his plea, the court does not reach King- Hardiman’s alternate argument that no one adequately explained the elements 28 and facts supporting the first-degree murder count to him. 1 Nevada law for a murder conviction, including the possibility of life imprisonment 2 without the possibility of parole, with his trial counsel in the years proceeding his 3 guilty plea, and (5) regardless of what the written plea agreement said and 4 regardless of his understanding of the sentencing possibilities under Nevada law, 5 he believed that life without the possibility of parole was no longer a sentencing 6 option because the state court judge is “the one that calls the big shots” and 7 mistakenly said “20 to life without the possibility of parole,” which he believed 8 meant he would serve 20 years in prison and then be released without any parole. 9 (ECF No. 43-16 at 6, 7, 9, 16, 22.) 10 2. Standard for an effective assistance of counsel claim 11 In Strickland v. Washington, the Supreme Court propounded a two-prong 12 test for analysis of claims of ineffective assistance of counsel requiring the 13 petitioner to demonstrate (1) that the attorney’s “representation fell below an 14 objective standard of reasonableness,” and (2) that the attorney’s deficient 15 performance prejudiced the defendant such that “there is a reasonable 16 probability that, but for counsel’s unprofessional errors, the result of the 17 proceeding would have been different.” 466 U.S. 668, 688, 694 (1984). A court 18 considering a claim of ineffective assistance of counsel must apply a “strong 19 presumption that counsel’s conduct falls within the wide range of reasonable 20 professional assistance.” Id. at 689. The petitioner’s burden is to show “that 21 counsel made errors so serious that counsel was not functioning as the ‘counsel’ 22 guaranteed the defendant by the Sixth Amendment.” Id. at 687. Additionally, to 23 establish prejudice under Strickland, it is not enough for the habeas petitioner 24 “to show that the errors had some conceivable effect on the outcome of the 25 proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the 26 defendant of a fair trial, a trial whose result is reliable.” Id. at 687. 27 When the ineffective assistance of counsel claim is based on a challenge to 28 a guilty plea, the Strickland prejudice prong requires the petitioner to 1 demonstrate “that there is a reasonable probability that, but for counsel’s errors, 2 he would not have pleaded guilty and would have insisted on going to trial.” Hill 3 v. Lockhart, 474 U.S. 52, 59 (1985); see also Lafler v. Cooper, 566 U.S. 156, 163 4 (2012) (“In the context of pleas a defendant must show the outcome of the plea 5 process would have been different with competent advice.”). 6 2. State court determination 7 In affirming the denial of King-Hardiman’s state post-conviction petition, 8 the Nevada Court of Appeals held:
9 King argues the district court erred by denying his claim that 10 counsel was ineffective for failing to adequately inform him about the consequences of his plea. Specifically, he claimed he did not see his 11 plea agreement until moments before he signed it, he was rushed and did not have adequate time to review it and understand it; and 12 he believed he could receive a sentence of “20 years to life without the possibility of parole” which meant a flat sentence of 20 years in 13 prison. Therefore, he claimed, based on his counsel’s ineffectiveness, 14 his plea was not knowingly, voluntarily, and intelligently entered. To prove ineffective assistance of counsel sufficient to 15 invalidate a judgment of conviction based on a guilty plea, a petitioner must demonstrate his counsel’s performance was deficient 16 in that it fell below an objective standard of reasonableness, and 17 resulting prejudice such that there is a reasonable probability, but for counsel’s errors, petitioner would not have pleaded guilty and 18 would have 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, 19 1107 (1996). Both components of the inquiry must be shown. 20 Strickland v. Washington, 466 U.S. 668, 697 (1984). We give deference to the court’s factual findings if supported by substantial 21 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, 22 686, 120 P.3d 1164, 1166 (2005). A guilty plea is presumptively valid, and a petitioner carries 23 the burden of establishing that the plea was not entered knowingly 24 and intelligently. Hubbard v. State, 110 Nev. 671, 675, 877 P.2d 519, 521 (1994). Further, this court will not reserve a district court’s 25 determination concerning the validity of a plea absent a clear abuse of discretion. Id. at 675, 877 P.2d at 521. In determining the validity 26 of a guilty plea, this court looks to the totality of the circumstances. 27 State v. Freese, 116 Nev. 1097, 1105, 13 P.3d 442, 448 (2000). After sentencing, a motion to withdraw guilty plea may only be granted to 28 correct manifest injustice. See NRS 176.165. 1 about the guilty plea agreement. When the district court went 2 through the potential penalties, King got upset and told the district court he would not take “life without.” The district court explained 3 “the minimum range on first degree murder is 20 to 50, a definite term; a life – 20 on the bottom, a life with the possibility of parole; or 4 20 on the bottom, life without the possibility of parole.” King continued to say he would not take a “life without.” The district court 5 then stated it could not go through with the plea canvass and King’s 6 attorneys requested time to discuss the plea with King. After 17 minutes, the parties came back and the district court started its 7 canvass again. The district court again explained: The range of punishment on a murder, first degree 8 murder, is 20 to 50 years, it’s 20 to life with the 9 possibility of parole, or it’s 20 to life without the possibility of parole and no one can promise you any 10 outcome. This is obviously a non-probationable offense on the murder. So the minimum you’re looking at is 20 11 on the bottom and a potential life without. 12 At the evidentiary hearing, King testified his attorneys explained the potential consequences, including that he could 13 receive life without the possibility of parole. He also testified he understood all of the potential penalties. He further testified his 14 misunderstanding came from the district court’s statement that “it’s 20 to life without the possibility of parole.” He also stated he believed 15 that what the district court says is “golden.” 16 The district court found King failed to demonstrate his counsel were deficient or prejudice resulting from a failure to explain or 17 communicate with him regarding the consequences of his plea. Further, the district court found King failed to demonstrate his plea 18 was not knowingly, voluntarily, or intelligently entered. We conclude 19 the record supports the decision of the district court. King’s testimony demonstrated counsel informed him about 20 the potential consequences of his plea and that he understood them. While the district court’s wording of the potential life without the 21 possibility of parole sentence was not clear, it does not change the 22 fact King was correctly informed of the consequences by his attorneys, and in the guilty plea agreement, and he testified he 23 understood them. Accordingly, King failed to demonstrate counsel was ineffective or that his plea was invalid. 24 25 (ECF No. 21-13 at 2–4.) 26 3. De novo review 27 King-Hardiman argues that the Nevada Court of Appeals’ finding that he 28 1 was correctly informed of the consequences of his plea by his attorneys was based 2 on an unreasonable determination of the facts, so he argues that this court 3 should review this ground de novo. (ECF No. 77 at 16.) As will be discussed 4 further below, King-Hardiman’s counsel failed to adequately advise him about 5 being sentenced to life without the possibility of parole during his change of plea 6 hearing, so this court finds that the Nevada Court of Appeals’ finding that King- 7 Hardiman was “correctly informed of the consequences [of his plea] by his 8 attorneys” was based on an unreasonable determination of the facts. Further, for 9 the reasons discussed in ground 1, the Nevada Court of Appeals’ conclusion that 10 the record supported the state court’s finding that King-Hardiman’s plea was 11 knowingly, voluntarily, and intelligently entered involved an unreasonable 12 application of Boykin. Finally, for the reasons discussed below, the Nevada Court 13 of Appeals’ conclusion that the record supported the state court’s finding that 14 King-Hardiman failed to demonstrate that his counsel was ineffective involved an 15 unreasonable application of Strickland. For these reasons, ground 3 will also be 16 reviewed de novo. See Panetti, 551 U.S. at 948. 17 4. Analysis 18 At the post-conviction evidentiary hearing, King-Hardiman testified that he 19 discussed the possible sentences he faced for a murder conviction, including the 20 possibility of life imprisonment without the possibility of parole, with his trial 21 counsel. (ECF No. 43-16 at 16, 20–21.) However, even if King-Hardiman’s trial 22 counsel adequately informed him of the standard possible sentences he faced, his 23 trial counsel failed to reasonably advise King-Hardiman about the consequences 24 of his plea at the change of plea hearing. Indeed, as was discussed in ground 1, 25 King-Hardiman was adamant about not pleading guilty to anything that would 26 expose him to a life without the possibility of parole sentence, the state court 27 misstated the life without the possibility of parole sentence, King-Hardiman was 28 rushed to plead guilty due to his capital jury trial getting ready to start, and King- 1 Hardiman ultimately exposed himself to the sentence that he resolutely rebuffed 2 by pleading guilty. King-Hardiman’s counsel failed to intervene and advocate for 3 King-Hardiman under these circumstances: he did not correct the state court’s 4 inaccurate statements or attempt in any manner to bring attention to the 5 confusing statements made by the state court, did not ask for a continuance— 6 regardless of whether such a request would have been granted—to further 7 discuss King-Hardiman’s plea with him, and allowed King-Hardiman to plead 8 guilty to the plea negotiations when he was clearly opposed to doing so. These 9 omissions on the part of King-Hardiman’s trial counsel were outside the range of 10 professional competent assistance required under Strickland. 11 This court acknowledges that “counsel is strongly presumed to have 12 rendered adequate assistance and made all significant decisions in the exercise 13 of reasonable professional judgment.” Strickland, 466 U.S. at 690; see also 14 Richter, 562 U.S. at 105 (“Even under de novo review, the standard for judging 15 counsel’s representation is a most deferential one.”). Even though there is nothing 16 in the record explaining the basis behind King-Hardiman’s counsel’s inaction 17 during the change of plea hearing, King-Hardiman overcomes this strong 18 presumption of adequate assistance, voiding any deference owed to King- 19 Hardiman’s counsel’s actions. Indeed, there can be no reasonable professional 20 judgment or strategic decision behind allowing a client to enter an unintelligent 21 guilty plea. 22 Turning to prejudice, based on the record, there is more than “a reasonable 23 probability that, but for counsel’s errors, [King-Hardiman] would not have 24 pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. 25 Rather, the fact that King-Hardiman would have gone to trial absent his counsel’s 26 errors is a certainty. In fact, at the change of plea hearing, King-Hardiman stated 27 that he only signed the plea agreement because he “was under the impression 28 [he would] be facing 20 to 50 or 20 to life” and wanted to “take [his guilty] plea 1 || back” when he learned that he was actually exposed to a life without the 2 || possibility of parole sentence under the agreement. (ECF No. 20-4 at 5-6.) 3 King-Hardiman is entitled to federal habeas for ground 3. || IV. CONCLUSION? 5 It is therefore ordered that the petition for a writ of habeas corpus pursuant 6 || to 28 U.S.C. § 2254 (ECF No. 19) is granted as to grounds 1 and 3. Petitioner 7 || Andre King-Hardiman’s judgment of conviction filed on July 31, 2014, in case 8 || number C244221, in the Eighth Judicial District Court for the State of Nevada is 9 || vacated. King-Hardiman’s guilty plea is vacated, and the State may reinstate its 10 || notice of intent to seek the death penalty if desired. Within 180 days!° of the later 11 || of (1) the conclusion of any proceedings seeking appellate or certiorari review of 12 || this court’s judgment, if affirmed, or (2) the expiration for seeking such appeal or 13 || review, the state court must commence jury selection regarding the Clark County 14 || Grand Jury’s July 16, 2008, Amended Superseding Indictment, accusing King- 15 || Hardiman of murder, invasion of the home, burglary, and robbery. 16 It is further ordered that the Clerk of the Court is directed to (1) substitute 17 || Nethanjah Breitenbach for Respondent Gittere, (2) enter judgment accordingly, 18 || (3) provide a copy of this order and the judgment to the Clerk of the Eighth 19 || Judicial District Court for the State of Nevada in connection with that court’s 20 || case number C244221, and (4) close this case. 21 DATED THIS 18t day of January 2024. 22 23 Ana plod de 24 ANNE R. TRAUM 25 UNITED STATES DISTRICT JUDGE 26 °King-Hardiman requests that this court conduct an evidentiary hearing. (ECF 27 || No. 19 at 24.) This court declines to do so because it is able to decide the petition on the record. 28 || 10Reasonable requests for modification of this time may be made by either party.