United States District Court, D. Nevada
the court for a decision on the merits is an application for
a writ of habeas corpus filed by Michael Ray Hogan, a Nevada
prisoner sentenced to death. ECF No. 139.
FACTUAL AND PROCEDURAL BACKGROUND
jury trial in May of 1985, Hogan was convicted in the Eighth
Judicial District, Clark County, of first-degree murder and
attempted murder. The Nevada Supreme Court would later
recount the facts underlying Hogan's convictions as
In the afternoon of November 19, 1984, after a weekend marked
by quarrels and death threats, appellant Michael Hogan shot
and killed his female companion, Heidi Hinkley. Hogan also
fired five bullets into the victim's teenage daughter,
who nevertheless survived and was able to testify at trial.
Hogan v. State, 732 P.2d 422, 423 (Nev. 1987).
penalty phase of Hogan's trial, the jury found two
aggravating circumstances: (1) Hogan was previously convicted
of a felony involving the use or threat of violence - i.e.,
an Iowa manslaughter conviction, and (2) he knowingly created
a great risk of death to more than one person. The jury found
no mitigating circumstances sufficient to outweigh the
aggravating circumstances and imposed a sentence of death.
18, 1985, the state district court entered a judgment of
conviction and one week later, on June 25, 1985, entered a
supplemental judgment of conviction which specifically
spelled out Hogan's sentence. Hogan appealed. On February
6, 1987, the Nevada Supreme Court issued an order affirming
Hogan's conviction and sentence. The United States
Supreme Court denied certiorari on October 5, 1987.
November 9, 1987, Hogan filed a pro se petition for
post-conviction relief in the Eighth Judicial District and
requested appointment of counsel. The trial court appointed
attorney Christopher Maglaras to represent Hogan in those
proceedings. On March 10, 1988, the trial court dismissed the
petition. Hogan appealed.
the district court denied his motion to withdraw as counsel,
Maglaras represented Hogan on appeal. On December 21, 1988,
the Nevada Supreme Court dismissed the appeal.
January 9, 1989, Hogan filed a pro se petition for writ of
habeas corpus in this court and, thereafter, requested
appointment of counsel. After the brief appointment of the
Federal Public Defender's office, retained counsel
Annette Quintana undertook representation of Hogan.
filed a first amended petition on April 28, 1989, then a
second amended petition on March 9, 1990. On September 7,
1990, pursuant to Hogan's motion, the court granted a
stay of the proceedings to allow Hogan to exhaust claims in
Quintana as counsel, Hogan filed, on November 20, 1990, a
petition for writ of habeas corpus in the Seventh Judicial
District, White Pine County. When that petition was dismissed
on April 6, 1992, Hogan appealed. On September 29, 1993, the
Nevada Supreme Court issued a decision affirming the lower
court's dismissal of the petition.
October of 1993, the Nevada Supreme Court entered an order
removing Quintana from the case and appointing the Nevada
Appellate and Postconviction Project to represent Hogan for
any remaining appellate proceedings. Michael Pescetta, then
with the appellate project, filed a petition for rehearing on
Hogan's behalf. On May 3, 1996, that petition was denied
by the Nevada Supreme Court. A petition for writ of
certiorari was denied by the United States Supreme Court on
October 15, 1996.
August of 1997, this court reopened federal habeas
proceedings and assigned this case a new case number (the
current one). Represented by Glynn Cartledge and Richard
Cornell, Hogan filed a third amended federal petition for
writ of habeas corpus on March 2, 2001. Pursuant to a
stipulation between the parties, this court entered an order
on December 30, 2003, staying these proceedings to allow
Hogan the opportunity to exhaust the unexhausted claims in
the third amended petition.
February 2, 2004, Hogan initiated exhaustion proceedings in
the Eighth Judicial District Court. On August 26, 2004, the
state court granted an evidentiary hearing on one issue in
Hogan's state petition. The State filed a petition with
the Nevada Supreme Court, asking that court to prevent the
evidentiary hearing. The Nevada Supreme Court denied the
State's petition on November 15, 2004. An evidentiary
hearing was held on August 5, 2005.
November 2, 2005, the state district court denied the
petition. Hogan appealed. The Nevada Supreme Court entered an
order affirming the denial on November 15, 2006. The court
denied rehearing on May 31, 2007, and denied rehearing en
banc on July 26, 2007.
counsel had been ordered in the 2003 stay order to notify
this court within 30 days of the conclusion of state court
proceedings, counsel failed to do so. Instead, in January of
2008, counsel moved to withdraw from representing Hogan. On
February 22, 2008, this court appointed the Federal Public
Defender's office to represent Hogan.
27, 2008, Hogan moved this court to continue the stay of
proceedings. With no opposition from the State, this court
entered an order on August 14, 2008, extending the stay of
federal proceedings to allow Hogan to present unexhausted
claims to the state courts.
September 10, 2008, Hogan filed a state petition for writ of
habeas corpus in the Eighth Judicial District Court. Without
holding an evidentiary hearing, the state court entered an
order dismissing the petition on May 19, 2009. Hogan
appealed. The Nevada Supreme Court affirmed the denial of
relief in an order entered on January 20, 2012. Remittitur
issued on March 8, 2012.
18, 2012, this court vacated the stay and reopened the
federal proceedings. On October 18, 2012, Hogan filed a
fourth amended petition for writ habeas corpus. On March 19,
2014, pursuant to respondents' motion to dismiss, this
court dismissed several of Hogan's claims as procedurally
September 28, 2015, this court entered an order granting
Hogan's motion for evidentiary hearing with respect to
his remaining ineffective assistance of counsel claim (Claim
Two(H)). In that order, the court directed Hogan to identify
what, if any, evidence he intended to present at an
evidentiary hearing beyond the materials he had already
submitted herein. In accordance with Rule 7(c) of the Rules
Governing Habeas Corpus Cases Under Section 2254, the court
also gave respondents the opportunity to admit or deny the
correctness of the materials Hogan submitted.
responded by identifying (and providing copies of) 71
exhibits in support of Claim Two(H). Respondents did not
specifically admit or deny the correctness of any those
exhibits. Thus, the court has considered them as part of the
record in deciding Claim Two(H).
STANDARDS OF REVIEW
action is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). 28 U.S.C. § 2254(d) sets forth the
standard of review under AEDPA:
An application for a writ of habeas corpus on behalf of a
person in custody 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 unless
the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
decision of a state court is "contrary to" clearly
established federal law if the state court arrives at a
conclusion opposite that reached by the Supreme Court on a
question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An "unreasonable
application" occurs when "a state-court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case." Id. at 409.
"[A] federal habeas court may not "issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly." Id. at 411.
Supreme Court has explained that "[a] federal
court's collateral review of a state-court decision must
be consistent with the respect due state courts in our
federal system." Miller-El v. Cockrell, 537
U.S. 322, 340 (2003). The "AEDPA thus imposes a
'highly deferential standard for evaluating state-court
rulings, ' and 'demands that state-court decisions be
given the benefit of the doubt.'" Renico v.
Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v.
Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)). "A
state court's determination that a claim lacks merit
precludes federal habeas relief so long as 'fairminded
jurists could disagree' on the correctness of the state
court's decision." Harrington v. Richter,
562 U.S. 86, 101 (2011) (citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
has emphasized "that even a strong case for relief does
not mean the state court's contrary conclusion was
unreasonable." Id. (citing Lockyer v.
Andrade, 538 U.S. 63, 75 (2003)); see also Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (describing the
AEDPA standard as "a difficult to meet and highly
deferential standard for evaluating state-court rulings,
which demands that state-court decisions be given the benefit
of the doubt") (internal quotation marks and citations
federal court may not second-guess a state court's
fact-finding process unless, after review of the state-court
record, it determines that the state court was not merely
wrong, but actually unreasonable." Taylor v.
Maddox, 366 F.3d 992, 999 (9th Cir. 2004);
see also Miller-El, 537 U.S. at 340 ("[A]
decision adjudicated on the merits in a state court and based
on a factual determination will not be overturned on factual
grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding, §
2254(d)(2)."). Because de novo review is more
favorable to the petitioner, federal courts can deny writs of
habeas corpus under § 2254 by engaging in de
novo review rather than applying the deferential AEDPA
standard. Berghuis v. Thompkins, 560 U.S. 370, 390
ANALYSIS OF CLAIMS
Claim Two(H), Hogan alleges that his constitutional right to
effective assistance of counsel was violated because trial
counsel failed to adequately investigate the legality and
underlying factual circumstances of the Iowa manslaughter
conviction that the State used as an aggravating
circumstance. According to Hogan, effective counsel could
have successfully challenged the State's use of the Iowa
conviction on multiple grounds. For one, he claims the Iowa
conviction was invalid under Iowa law and federal law. In
addition, he claims that the conviction did not involve the
use or threat of violence because Iowa law at the time did
not distinguish between voluntary and involuntary
manslaughter and, in addition, there was available evidence
that the victim's death was accidental.
v. Washington, 466 U.S. 668 (1984), provides the
relevant federal law in determining whether counsel's
assistance failed to meet constitutional standards. Under
Strickland, a habeas petitioner must show: (1)
counsel's performance fell below an objective standard of
reasonableness; and (2) the deficient performance was
prejudicial. Strickland, 466 U.S. 668, 687-88
presented Claim Two(H) in his second state post-conviction
proceeding. In that proceeding, the state district court
dismissed his petition on procedural grounds, concluding that
the Nevada Supreme Court had already determined that Hogan
received effective assistance of trial and appellate counsel
and that his petition was a successive petition under Nev.
Rev. Stat. § 34.810. ECF No. 142-4, p. 181-85. On
appeal, Hogan argued that lower court's imposition of the
procedural bar was erroneous because he is “actually
innocent” of the two aggravating circumstances on which
his death sentence is based and that the law of the case
doctrine did not apply because he was presenting a different
factual and legal issue. ECF No. 143-4, p. 96-129.
support of this argument, he explained that, subsequent to
the dismissal of his prior state post-conviction proceeding,
he sought relief from the manslaughter conviction in the Iowa
courts. Id. In that proceeding, an assistant county
attorney representing the State of Iowa had stipulated that
Hogan's guilty plea to the manslaughter charge was
unconstitutional and violated Iowa law. Even so, the Iowa
Supreme Court determined that Hogan's challenge to the
conviction was untimely and rejected it on that basis.
Hogan v. State, 454 N.W.2d 360, 361 (Iowa
Nevada Supreme Court determined that Hogan's claim that
his guilty plea was defective failed because the Iowa Supreme
Court, in denying Hogan's challenge as untimely,
“found no factual basis for relieving Hogan of his
felony conviction for manslaughter and there is no basis for
presuming that the Iowa court ignored constitutional grounds
for granting such relief.” Hogan v. Warden, Ely
State Prison, 860 P.2d 710, 713 (Nev. 1993). The Nevada
Supreme Court also noted, in a footnote, that it had
previously held that the Iowa plea canvass met the
requirements of Boykin v. Alabama, 395 U.S. 238
(1969), and had rejected Hogan's contention that his
guilty plea was “constitutionally infirm.”
Hogan, 860 P.2d at 713 n.5 (citing Hogan v.
State, 732 P.2d 422, 424 n. 1 (Nev. 1987).
whether the State had proved that the manslaughter conviction
involved the use or threat of violence, the Nevada Supreme
Hogan insists that irrespective of the constitutionality of
his Iowa conviction, there was no evidentiary basis for
finding that his crime involved the use or threat of violence
on the person of the victim. Hogan is wrong. The record
reflects that before the district court allowed evidence of
the Iowa conviction to be introduced as an aggravating
circumstance, the State provided the court with a transcript
of the Iowa plea proceeding that conclusively demonstrated
that Hogan resorted to violence in the commission of his
Hogan, 860 P.2d at 713.
although it determined that Hogan had not overcome the
procedural default, the Nevada Supreme Court addressed
Hogan's ineffective assistance of counsel claim:
Hogan's attempt to revisit the issue of ineffective
assistance of counsel at the trial and appellate levels must
also fail. We have previously determined, and it is now the
law of the case, that Hogan's trial and appellate counsel
were clearly effective and that the criteria for relief
established by Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), have not been
satisfied. The primary gravamen of Hogan's ineffective
assistance of counsel claim relates to what he considers the
failure to investigate the constitutional validity of his
Iowa conviction. We have revisited the Iowa conviction in the
instant case and have concluded from the evidence of record
that any additional investigation of the circumstances of
that conviction by defense counsel would have been
unavailing. Hogan's contention is without merit.
Hogan, 860 P.2d at 716.
decision overlooked an important component of Hogan's
ineffective assistance of counsel claim. The Iowa Supreme
Court's rejection of Hogan's attempt to set aside his
guilty plea was based entirely on a determination that he had
failed to overcome Iowa's three-year time bar on
petitions for post-conviction relief. Hogan, 454
N.W.2d at 361. Neither the Iowa Supreme Court, nor the Nevada
Supreme Court in relying upon the Iowa decision, addressed
whether Hogan's guilty plea was invalid under Iowa law.
ineffective assistance of counsel (IAC) claim is premised, in
large part, on trial counsel's failure to timely
challenge Hogan's manslaughter conviction in the Iowa
courts. While perhaps not dispositive on the issue, the
stipulation of the county attorney establishes at least a
reasonable likelihood that such a challenge would have been
successful, which, in turn, would have precluded the State of
Nevada from using the conviction as an aggravating
circumstance to support the death penalty. The Nevada Supreme
Court's failure to recognize or address this point
constituted an unreasonable application of the
Strickland standard. Because Hogan has met the
§ 2254(d) requirement with respect to Claim Two(H), this
court must conduct a de novo review of the claim.
See Frantz v. Hazey, 533 F.3d 724, 735
(9th Cir. 2008) (en banc) (“[I]t is now
clear both that we may not grant habeas relief simply because
of § 2254(d)(1) error and that, if there is such error,
we must decide the habeas petition by considering de novo the
constitutional issues raised.”).
noted, Hogan's ineffective assistance of counsel claim
premised on trial counsel's failure to investigate and
challenge the State's use of the Iowa conviction as an
aggravating circumstance is multifaceted. Hogan contends that
trial counsel's performance was deficient due to the
following errors or omissions: (1) counsel failed to cite to
controlling U.S. Supreme Court authority in moving to strike
the aggravating circumstance in the Nevada trial court, (2)
counsel failed to timely challenge the conviction in the Iowa
courts, (3) counsel failed to challenge the conviction on the
ground that it was not a crime of violence under Nevada law,
and (4) counsel failed to investigate the facts underlying
Failure to adequately challenge the Iowa guilty plea in the
Nevada trial court.
before the penalty phase was to begin, Hogan's trial
counsel filed a motion to strike the Iowa conviction as an
aggravating circumstance, arguing that Hogan's guilty
plea in that case was “constitutionally
defective.” ECF No. 191-7, p. 29-39. In the brief
supporting the motion, counsel argued that the Iowa state
court record failed to affirmatively demonstrate that Hogan
entered the plea “knowingly and understandingly.”
Id. In particular, counsel noted in the brief, the
record failed to establish that Hogan had been notified of
the elements of manslaughter or that he made factual
admissions that would satisfy the elements.
Id. While the brief did not cite to a U.S.
Supreme Court case, it relied heavily on a Nevada case,
Scott v. State, 630 P.2d 257 (Nev. 1981), that cited
to Boykin for the relevant holding. See
Scott, 630 P.2d at 258 (noting that the record
“does not disclose that defendant's plea of guilty
was entered ‘voluntarily and understandingly.'
See Boykin, [395 U.S. at 244]”).
argument on the motion, defense counsel argued that the Iowa
conviction was constitutionally defective under Nevada
Supreme Court decisions interpreting the United States
Constitution and the Nevada Constitution. ECF No. 191-8, p.
7. The trial judge denied the motion from the bench, finding
that the transcript demonstrated the guilty plea was not
defective. Id., p. 9-10.
addressing the validity of the Iowa guilty plea in
Hogan's direct appeal, the Nevada Supreme Court held as
Hogan was convicted of manslaughter in 1971, pursuant to a
guilty plea in an Iowa prosecution. He now alleges that the
Iowa court did not tell him the elements of that offense.
There is no requirement that it do so; all that is necessary
is that the accused actually be aware of the nature of the
offense. It is proper to presume that counsel has explained
the elements of the crime to the accused, Henderson v.
Morgan, 426 U.S. 637, 647, 96 S.Ct. 2253, 2258-59, 49
L.Ed.2d 108 (1976); see also Bryant v. State, 102
Nev. 268, 721 P.2d 364 (1986). Hogan has done nothing to
rebut that presumption. Further, the transcript of the Iowa
proceedings discloses that Hogan received adequate
opportunity to consult with his attorneys and obtain their
advice. In addition, the Iowa sentencing report states that
the court informed Hogan of the nature of the crime and asked
for his comments before pronouncing sentence. Hogan
thereafter affirmed the propriety of his plea by serving his
sentence for the manslaughter conviction without any
challenge to its validity.1
1 Hogan also alleges that there was no adequate
waiver of his rights, as required by Boykin v.
Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969). We have reviewed the transcript and conclude that
each of the rights enumerated in Boykin was waived,
though the Iowa court referred to them rather obliquely. . .
Hogan v. State, 103 Nev. 21, 24, 732 P.2d 422,
IAC in relation to the motion strike has changed throughout
these proceedings. In pleading Claim 2(H) in his petition, he
claims merely that competent counsel would have “moved
to strike” the Iowa conviction as an aggravating
circumstance “due to its unconstitutionality, which was
an available remedy under Nevada law.” ECF No. 139, p.
90. This vague allegation is an odd one given that
Hogan's counsel did in fact file such a motion, as
arguing Claim 2(H) in his reply to the respondents'
answer, Hogan does not specifically mention trial
counsel's pretrial motion to strike, much less specify
how it was deficient. ECF No. 178, p. 3-16. He does argue,
however, the manner in which, according to him, the guilty
plea was defective under Boykin. Id., p.
15-16. Specifically, he contends that the guilty plea ran
afoul of Boykin because the Iowa trial judge
“failed to admonish Mr. Hogan regarding the elements of
manslaughter, the privilege against self-incrimination, and
the right to confrontation.” Id. As explained
above, trial counsel's motion to strike focused on the
first alleged defect, but did not specifically mention the
in a memorandum of points and authorities filed herein in
April of 2016 (hereinafter referred to as the “April
2016 memorandum”), Hogan faults counsel for basing the
motion to strike “entirely on Nevada case law”
and for failing to present “controlling United States
Supreme Court authority.” ECF No. ...