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Hendren v. Howell

United States District Court, D. Nevada

March 27, 2018

KENNETH A. HENDREN, Petitioner,
v.
JERRY HOWELL, et al., Respondents.

          ORDER

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Introduction

         This action is a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, by Kenneth A. Hendren, a Nevada prisoner. The respondents have filed an answer, responding to all the claims in Hendren's petition for writ of habeas corpus, and Hendren has filed a reply. The Court will deny Hendren's petition.

         Background

         On December 18, 2009, Hendren was charged, by information, with possession of a firearm by an ex-felon and unlawful possession of a short barreled shotgun, both felonies. See Information, Exhibit 6 (ECF No. 16-6). On October 20, 2010, Hendren pled guilty to those charges. See Transcript of Proceedings, October 20, 2010, Exhibit 13 (ECF No. 16-13); Guilty Plea Memorandum, Exhibit 14 (ECF No. 16-14). On February 16, 2011, Hendren was sentenced, as an habitual criminal, to two consecutive terms of life in prison, with parole eligibility after 10 years. See Transcript of Proceedings, Sentencing, February 16, 2011, Exhibit 16 (ECF No. 16-16); Judgment of Conviction, Exhibit 19 (ECF No. 16-19).

         Hendren appealed. See Notice of Appeal, Exhibit 21 (ECF No. 16-21); Appellant's Opening Brief, Exhibit 48 (ECF No. 16-48). The Nevada Supreme Court affirmed Hendren's conviction and sentence on January 12, 2012. See Order of Affirmance, Exhibit 53 (ECF No. 17-4).

         On January 11, 2013, Hendren filed a pro se petition for writ of habeas corpus in the state district court. See Petition for Writ of Habeas Corpus, Exhibit 57 (ECF No. 17-8). On August 7, 2013, with counsel, Hendren filed an amended petition. See Amended Petition for Writ of Habeas Corpus, Exhibits 61A and 61B, (ECF Nos. 17-12, 17-13). After hearing argument from the parties, the state district court denied Hendren's petition on February 17, 2015. See Transcript of Proceedings, January 12, 2015, Exhibit 66 (ECF No. 17-18); Findings of Fact, Conclusions of Law and Order, Exhibit 68 (ECF No. 17-20). Hendren appealed. See Notice of Appeal, Exhibit 71 (ECF No. 17-23); Appellant's Opening Brief, Exhibit 75 (ECF No. 17-27). The Nevada Supreme Court affirmed on December 18, 2015. See Order of Affirmance, Exhibit 81 (ECF No. 17-33).

         This Court received Hendren's federal petition for writ of habeas corpus, initiating this action, pro se, on February 22, 2016 (ECF No. 6). Hendren's petition asserts the following claims:

         1. Hendren's guilty plea was not knowingly or intelligently entered into, in violation of his federal constitutional rights. See Petition for Writ of Habeas Corpus (ECF No. 6), pp. 3-3A.

         2. Hendren, received ineffective assistance of counsel, in violation of his federal constitutional rights. See id. at 5-5A.

A. Hendren's trial counsel failed to move to suppress the shotgun. See id. at 5A-5B.
B. Hendren's trial counsel “permitted a beneficial plea offer to lapse, and then advised a ‘straight up' plea without the benefit of negotiations.” See id. at 5B-5D.
C. Hendren's trial counsel “misled the District Court into believing [Hendren] possessed two firearms.” See id. at 5E.
D. Hendren's trial counsel failed to move to withdraw the guilty plea. See id. at 5E-5F.
E. Hendren's appellate counsel failed to properly brief the issue of the validity of the guilty plea. See id. at 5F-5H.
F. The cumulative effect of the errors of Hendren's counsel violated his federal constitutional rights. See id. at 5H-5I.

         Respondents filed an answer (ECF No. 14), and Hendren filed a reply (ECF No. 23). Hendren's habeas petition is fully briefed and before the Court for resolution on the merits of Hendren's claims. Discussion

         28 U.S.C. § 2254(d)

         A federal court may not grant a petition for a writ of habeas corpus on any claim that was adjudicated on the merits in state court unless the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by United States Supreme Court precedent, or 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). A state-court ruling is “contrary to” clearly established federal law if it either applies a rule that contradicts governing Supreme Court law or reaches a result that differs from the result the Supreme Court reached on “materially indistinguishable” facts. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). A state-court ruling is “an unreasonable application” of clearly established federal law under section 2254(d) if it correctly identifies the governing legal rule but unreasonably applies the rule to the facts of the particular case. See Williams v. Taylor, 529 U.S. 362, 407-08 (2000). To obtain federal habeas relief for such an “unreasonable application, ” however, a petitioner must show that the state court's application of Supreme Court precedent was “objectively unreasonable.” Id. at 409-10; see also Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Or, in other words, habeas relief is warranted, under the “unreasonable application” clause of section 2254(d), only if the state court's ruling was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

         Ground 1

         In Ground 1, Hendren claims that his guilty plea was not knowingly or intelligently entered into, in violation of his federal constitutional rights. See Petition for Writ of Habeas Corpus (ECF No. 6), pp. 3-3A. More specifically, to the extent this claim is distinguishable from the ineffective assistance of counsel claims discussed below, Hendren contends that “he was unaware of the conditions of probation that would be imposed, ” and “his trial counsel made threats against him to secure his participation in a constitutionally infirm proceeding.” See id.

         Hendren presented this claim in his state habeas corpus action, and, on the appeal in that action, the Nevada Supreme Court ruled as follows:

On appeal from the denial of his January 11, 2013, petition, appellant Kenneth Arthur Hendren first argues the district court erred by concluding he entered a knowing and voluntary guilty plea. Hendren asserts he entered his plea under duress from his counsel and he did not receive a benefit from entry of his plea. Hendren fails to meet his burden to demonstrate that he did not enter a knowing and voluntary plea. See Hubbard v. State, 110 Nev. 671, 675, 877 P.2d 519, 521 (1994); Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986).
Hendren was informed in the guilty plea agreement and at the plea canvass of the charges he faced, of the possible range of penalties, and of the rights he waived by entering a guilty plea. In addition, Hendren acknowledged in the plea agreement and at the plea canvass that he did not act under duress or due to threats. The district court concluded that the totality of the circumstances demonstrated Hendren's guilty plea was valid, see State v. Freese, 116 Nev. 1097, 1105, 13 P.3d 442, 448 (2000), and substantial evidence supports that conclusion. Therefore, the district court did not err in denying this claim.

         Order of Affirmance, Exhibit 81, pp. 1-2 (ECF No. 17-33, pp. 2-3). The Court finds this ruling of the Nevada Supreme Court to be reasonable.

         The federal constitutional guarantee of due process of law requires that a guilty plea be knowing, intelligent and voluntary. Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969); United States v. Delgado-Ramos, 635 F.3d 1237, 1239 (9th Cir. 2011). “The voluntariness of [a petitioner's] guilty plea can be determined only by considering all of the relevant circumstances surrounding it.” Brady, 397 U.S. at 749. Those circumstances include “the subjective state of mind of the defendant....” Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986). Addressing the “standard as to the voluntariness of guilty pleas, ” the Supreme Court has stated:

(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).

Brady, 397 U.S. at 755 (quoting Shelton v. United States, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en banc), rev'd on other grounds, 356 U.S. 26 (1958)); see also North Carolina v. Alford, 400 U.S. 25, 31 (1970) (noting that the “longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice ...


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