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Hernandez v. Legrand

United States District Court, D. Nevada

June 4, 2019

JOSEPH A. HERNANDEZ, Petitioner,
v.
LEGRAND, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         This is 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 denied.

         I. BACKGROUND

         A. State Procedural History

         Hernandez 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.)

         Hernandez 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.)

         B. Federal Habeas Proceedings

         In 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 plea offer.
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 ...

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