United States District Court, D. Nevada
KENNETH A. HENDREN, Petitioner,
JERRY HOWELL, et al., Respondents.
P. GORDON UNITED STATES DISTRICT JUDGE
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.
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).
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).
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).
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:
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.
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.
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
U.S.C. § 2254(d)
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, 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
presented this claim in his state habeas corpus action, and,
on the appeal in that action, the Nevada Supreme Court ruled
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.
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
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
(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.
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 ...