United States District Court, D. Nevada
JOSEPH A. HERNANDEZ, Petitioner,
LEGRAND, et al., Respondents.
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
a habeas corpus proceeding under 28 U.S.C. § 2254
brought by Petitioner Joseph A. Hernandez, a Nevada prisoner
who is represented by counsel. Currently before the Court is
Respondents' Motion to Dismiss Amended Petition (ECF No.
15). Respondents seek dismissal of the claims asserted in
Ground 2 of Hernandez's Amended Petition (ECF No. 14) as
unexhausted or procedurally barred. Hernandez has opposed
(ECF No. 24), and Respondents have replied (ECF No. 27). For
the reasons discussed below, Respondents' motion is
State Procedural History
challenges a conviction and sentence imposed by the state
district court for Pershing County, Nevada. In September
2011, Hernandez entered a guilty plea to two counts of
lewdness with a child under the age of 14 years. (ECF No.
16-25.) He moved to withdraw his guilty plea; however, the
state district court denied his motion. (ECF Nos. 16-31,
16-40.) On March 27, 2012, the state district court entered a
judgment of conviction sentencing Hernandez to two
consecutive sentences of life with eligibility for parole
after ten years. (ECF Nos. 17-1, 17-2.) He appealed. In
February 2013, the Nevada Supreme Court affirmed
Hernandez's convictions on direct appeal, then issued a
remittitur on March 12, 2013. (ECF Nos. 17-12, 17-13.)
filed a pro se state post-conviction petition for habeas
corpus relief on April 17, 2013. (ECF Nos. 17-17, 17-18.) The
state district court appointed counsel, who filed a
supplemental petition. (ECF No. 17-31.) The court denied the
petition on September 30, 2016. (ECF No. 19-8.) Hernandez
appealed. The Nevada Court of Appeals affirmed the state
district court's ruling in October 2017. (ECF No. 19-42.)
Remittitur issued on November 6, 2017. (ECF No. 19-44.)
Federal Habeas Proceedings
November 2017, Hernandez initiated this federal habeas corpus
proceeding pro se. (ECF No. 1.) He also filed a motion for
appointment of counsel, which the Court granted. (ECF Nos. 3,
5.) On October 31, 2018, Hernandez filed a counseled, Amended
Petition (ECF No. 14), raising the following claims:
Ground 1: Mr. Hernandez did not plead guilty
knowingly, voluntarily, and intelligently; his plea thus
violates the Due Process Clause of the Fourteenth Amendment
to the United States Constitution and is void.
Ground 2: Trial counsel was ineffective
prior to Mr. Hernandez's guilty plea, in violation of the
Sixth and Fourteenth Amendments to the United States
Constitution, rendering his guilty plea void.
A. Trial counsel was ineffective for failing to move to
suppress Mr. Hernandez's confession to Idaho law
enforcement, or otherwise to inform Mr. Hernandez of his
ability to do so, before advising Mr. Hernandez to accept a
B. Trial counsel was ineffective for failing to adequately
investigate prior to advising Mr. Hernandez to plead guilty.
C. Trial counsel was ineffective for failing to provide Mr.
Hernandez with discovery in a timely fashion, such that he
can make a knowing, intelligent, and voluntary ...