Hermanson v. Baca et al

Filing 55

ORDER - IT THEREFORE IS ORDERED that Hermanson's second amended petition for a writ of habeas corpus under 28 U.S.C. § 2254 (ECF No. 21 ) is DENIED. IT FURTHER IS ORDERED that Hermanson is DENIED a certificate of appealability. IT FURTHER IS ORDERED that the Clerk of the Court shall substitute Fernandies Frazier for Respondent Isidro Baca. IT FURTHER IS ORDERED that the Clerk of the Court shall enter judgment accordingly and close this case. Signed by Judge Howard D. McKibben on 12/12/2022. (Copies have been distributed pursuant to the NEF - CJS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JAMES E. HERMANSON,

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Case No. 3:17-cv-00721-HDM-CLB
Petitioner,

v.

ORDER

ISIDRO BACA, 1 et al.,
Respondents.

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10

Petitioner James E. Hermanson has filed a habeas petition

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pursuant

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conviction, pursuant to a guilty plea, of sexual assault of a child

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under sixteen. (ECF No. 21). The second amended petition, filed by

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counsel, is before the Court for adjudication of the merits.

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Respondents have answered (ECF No. 53), and Hermanson has replied.

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(ECF No. 54).

to

28

U.S.C.

§

2254

challenging

his

state-court

17

For the reasons discussed below, the Court denies Hermanson’s

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habeas petition, denies him a certificate of appealability, and

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directs the Clerk of the Court to enter judgment accordingly.

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I.

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BACKGROUND 2
On March 16, 2013, Hermanson was arrested after his minor

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1 According to the state corrections department’s inmate locator page, Hermanson
is incarcerated at Northern Nevada Correctional Center. The department’s website
reflects that Fernandies Frazier is the warden of that facility. At the end of
this order, the Court directs the Clerk of the Court to substitute Fernandies
Frazier for Respondent Isidro Baca under Rule 25(d) of the Federal Rules of
Civil Procedure.
2 The Court makes no credibility findings or other factual findings regarding
the truth or falsity of this summary of the evidence from the state court. This
Court’s summary is merely a backdrop to its consideration of the issues
presented in the case. Any absence of mention of a specific piece of evidence
does not signify that the Court overlooked it in considering Hermanson’s claims.

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stepdaughter, M.M., disclosed to law enforcement that he had

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engaged in “[i]nappropriate sexual conduct” with her. (ECF No. 15-

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1 at 104-06, 108-09). When officers arrived at his house to arrest

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him, Hermanson was unconscious. (Id. at 13). Feeling “severely

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depressed” about M.M.’s allegations, Hermanson had attempted to

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commit suicide by overdosing on “psych meds, pain pills, and

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Flexeril.” (Id. at 12-13, 15, 32). The arresting officers woke him

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up and took him to a Yerington hospital, where he stayed before

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being transported by Care Flight to a hospital in Reno. (Id. at

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14).

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Following his hospital stays, Hermanson was taken to the Lyon

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County Jail. (Id.) There, Hermanson tried to commit suicide again,

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first by banging his head against a wall and then by eating the

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“plastic on [his] mattress.” (Id. at 15-16). Hermanson was taken

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to a hospital, where a doctor filled out a form “committing [him]

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to the mental hospital in Reno.” (Id. at 16). Instead of taking

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him to the “mental hospital,” however, the escorting officer took

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him back to the jail. (Id.)

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On the evening of March 18, 2013, law enforcement interviewed

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Hermanson at the jail. (Id. at 109-12). Following the reading of

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his Miranda rights, Hermanson admitted that he had touched M.M.’s

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clitoris “one time” because “she asked [him] to.” (Id. at 125-28).

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Hermanson acknowledged that this admission “was enough to put [him]

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in prison” for “lewdness.” (Id. at 128).

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Two days later, on March 20, 2013, Hermanson was charged with

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one count of lewdness with a child under fourteen, specifically

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M.M. (ECF No. 14-2). On May 1, 2013, Hermanson was charged with an

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additional count of sexual assault of a child under sixteen. (ECF
2

1

No. 14-3). This new charge related to allegations that Hermanson

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had engaged in sexual conduct with K.H., his niece. (Id. at 2; ECF

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No. 15-1 at 68). The amended criminal complaint, which contained

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both counts, noted that Hermanson had previously been convicted of

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lewdness with a child under fourteen. (ECF No. 14-3 at 1-2). As a

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result of this prior conviction, Hermanson faced a potential

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sentence of life without the possibility of parole. See NRS §

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200.366(4) (West 2013); NRS § 201.230(3) (West 2013).

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On July 1, 2013, Hermanson pled guilty to one count of sexual

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assault of a child under sixteen. (ECF No. 14-7). In exchange, the

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State agreed to (i) drop the charge of lewdness with a child under

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fourteen,

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possibility of parole for the remaining count. (Id. at 1; ECF No.

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15-1 at 21-22). Instead, Hermanson would receive a sentence of

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life with the possibility of parole after twenty-five years. (ECF

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No. 14-7 at 2). Following the entry of his guilty plea, Hermanson

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was sentenced to life with parole eligibility after twenty-five

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years. (ECF No. 14-9).

and

(ii)

not

seek

a

sentence

of

life

without

the

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Hermanson did not pursue a direct appeal. Instead, he sought

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habeas relief in Nevada state court. (ECF No. 14-10). Counsel was

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appointed, and Hermanson filed a supplemental petition on April

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15, 2015. (ECF No. 14-16). Following an evidentiary hearing, the

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state district court denied Hermanson’s petition. (ECF No. 15-2).

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The Nevada Court of Appeals affirmed the denial of the petition on

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January 19, 2017. (ECF No. 16-7). While his appeal was pending,

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Hermanson

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subsequently denied as successive. (ECF No. 16-2; ECF No. 16-11).

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This

filed
Court

another
received

state

habeas

Hermanson’s
3

petition,

pro

se

which

federal

was

habeas

1

petition

on

December

2

appointment of counsel, Hermanson filed a first amended petition

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and then a second amended petition. (ECF Nos. 13, 21). Respondents

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moved to dismiss Grounds 2, 3, 4, and 5 of the second amended

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petition.

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unexhausted,

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exhausted but procedurally defaulted. (ECF No. 43). The Court

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allowed Hermanson to return to state court to exhaust Ground 3 and

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agreed to defer consideration of whether Hermanson could excuse

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the default of Grounds 2, 4, and 5 until the merits disposition.

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(Id. at 7; ECF No. 45).

(ECF

No.

and

14,

31).

that

2017.

This

(ECF

Court

Grounds

2,

4,

No.

held
and

1).

that
5

Following

Ground

were

3

the

was

technically

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This action was stayed while Hermanson exhausted Ground 3,

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which alleged that his right to due process was violated because

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he

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(“PSI”). (ECF No. 45). Hermanson returned to state district court

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and filed a motion to correct an illegal sentence. (ECF No. 51-

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2). The district court denied the motion, and the Nevada Supreme

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Court affirmed on October 18, 2021. (ECF No. 51-2; ECF No. 51-7).

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Following the completion of the state-court proceedings, the Court

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reopened this action and ordered merits briefing on the second

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amended petition. (ECF No. 52).

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II.

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was

sentenced

without

a

presentence

investigation

report

LEGAL STANDARDS
A.

Review

under

the

Antiterrorism

and

Effective

Death

Penalty Act

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The Antiterrorism and Effective Death Penalty Act (“AEDPA”)

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sets forth the standard of review generally applicable in habeas

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corpus cases:

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An application for a writ of habeas corpus on behalf of
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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; or
(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.

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U.S.C.

§

2254(d).

A

state-court

decision

is

contrary

to

established Supreme Court precedent, within the meaning of §
2254(d)(1), “if the state court applies a rule that contradicts
the governing law set forth in [Supreme Court] cases” or “if the
state

court

confronts

a

set

of

facts

that

are

materially

indistinguishable from a decision of [the Supreme] Court.” Lockyer
v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor,
529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S.
685,

694

(2002)).

application

of

A

state-court

established

decision

Supreme

is

Court

an

unreasonable

precedent

under

§

2254(d)(1) “if the state court identifies the correct governing
legal

principle

from

[the

Supreme]

Court’s

decisions

but

unreasonably applies that principle to the facts of the prisoner’s
case.”

Id.

at

‘unreasonable

75

(quoting

application’

Williams,
clause

529

U.S.

requires

at

the

413).
state

“The
court

decision to be more than incorrect or erroneous. The state court’s
application

of

clearly

established

law

must

be

objectively

unreasonable.” Id. (internal citation omitted) (quoting Williams,
529 U.S. at 409-10).
“A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists

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1

could disagree’ on the correctness of the state court’s decision.”

2

Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough

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v. Alvarado, 541 U.S. 652, 664 (2004)). And “even a strong case

4

for relief does not mean the state court’s contrary conclusion was

5

unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see

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also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing

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the standard as “difficult to meet” and a “highly deferential

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standard for evaluating state-court rulings, which demands that

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state-court decisions be given the benefit of the doubt” (internal

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quotation marks and citations omitted)).

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B.

Standard for Evaluating an Ineffective-Assistance Claim

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In Strickland, the Supreme Court propounded a two-prong test

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for

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requiring a petitioner to demonstrate that (i) the attorney’s

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“representation

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reasonableness,” and (ii) the attorney’s deficient performance

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prejudiced

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probability that, but for counsel’s unprofessional errors, the

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result of the proceeding would have been different.” Strickland v.

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Washington, 466 U.S. 668, 688, 694 (1984). Courts considering a

21

claim of ineffective assistance of counsel must apply a “strong

22

presumption that counsel’s conduct falls within the wide range of

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reasonable professional assistance.” Id. at 689. The petitioner

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bears the burden of showing that “counsel made errors so serious

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that counsel was not functioning as the ‘counsel’ guaranteed . .

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. by the Sixth Amendment.” Id. at 687.

analysis

of

the

claims
fell

of

ineffective

below

petitioner

an

such

that

assistance

objective
“there

is

of

counsel

standard
a

of

reasonable

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Moreover, to establish prejudice under Strickland, it is not

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enough for the petitioner “to show that the errors had some
6

1

conceivable effect on the outcome of the proceeding.” Id. at 693.

2

Rather,

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[petitioner] of a fair trial, a trial whose result is reliable.”

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Id. at 687. When the ineffective-assistance claim challenges a

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guilty

6

petitioner to demonstrate “a reasonable probability that, but for

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counsel’s errors, [the petitioner] would not have pleaded guilty

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and would have insisted on going to trial.” Hill v. Lockhart, 474

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U.S. 52, 59 (1985).

the

errors

plea,

the

must

be

“so

serious

prejudice

Strickland

as

to

prong

deprive

requires

the

the

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Under Hill, a challenge to the voluntariness of a plea may be

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based upon a claim of ineffective assistance of counsel. As the

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Supreme Court observed:

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For example, where the alleged error of counsel is a
failure
to
investigate
or
discover
potentially
exculpatory evidence, the determination whether the
error “prejudiced” [the petitioner] by causing him to
plead guilty rather than go to trial will depend on the
likelihood that discovery of the evidence would have led
counsel to change his recommendation as to the plea.
This assessment, in turn, will depend in large part on
a prediction whether the evidence likely would have
changed the outcome of a trial. Similarly, where the
alleged error of counsel is a failure to advise [the
petitioner] of a potential affirmative defense to the
crime charged, the resolution of the “prejudice” inquiry
will depend largely on whether the affirmative defense
likely would have succeeded at trial. . . . As we
explained in Strickland v. Washington, these predictions
of the outcome at a possible trial, where necessary,
should be made objectively, without regard for the
“idiosyncrasies of the particular decisionmaker.”

Id. at 59-60 (citing Strickland, 466 U.S. at 695).

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Where a state court previously adjudicated the claim of

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ineffective assistance of counsel under Strickland, establishing

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that the decision was unreasonable is especially difficult. See

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Harrington, 562 U.S. at 104-05. In Harrington, the Supreme Court

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clarified

that

Strickland

and
7

§

2254(d)

are

each

highly

1

deferential, and when the two apply in tandem, review is doubly

2

so. See id. at 105; see also Cheney v. Washington, 614 F.3d 987,

3

995 (9th Cir. 2010) (internal quotation marks omitted) (“When a

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federal court reviews a state court’s Strickland determination

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under AEDPA, both AEDPA and Strickland’s deferential standards

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apply; hence, the Supreme Court’s description of the standard as

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doubly deferential.”). The Court further clarified that, “[w]hen

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§ 2254(d) applies, the question is not whether counsel’s actions

9

were reasonable. The question is whether there is any reasonable

10

argument

11

standard.” Harrington, 562 U.S. at 105.

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III. ANALYSIS

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A.

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In Ground 1(B), Hermanson alleges that his counsel provided

that

counsel

satisfied

Strickland’s

deferential

Ground 1(B) 3

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ineffective

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statements he made to law enforcement after his arrest. (ECF No.

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21 at 13). Hermanson points to several “red flags” that allegedly

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“rais[e] concerns [about] the voluntariness” of his statements.

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(Id.) The “red flags” include (i) Hermanson’s “severe mental health

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breakdown,” which culminated in multiple suicide attempts before

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and after the interview; (ii) Hermanson’s lack of “adequate sleep”

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and his inability to “keep food down” around the time of the

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interview; and (iii) the “bias[ ]” of the interviewer, Detective

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McNeil,

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Hermanson several years earlier. (ECF No. 54 at 11-14). Hermanson

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argues that, had his counsel moved to suppress his statements,

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assistance

whose

daughter

by

had

failing

to

allegedly

move

to

received

suppress

a

tattoo

the

from

The Court addresses Ground 1(B) before Ground 1(A) because the former claim
provides background information relevant to the latter.
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there is “more than a reasonability probability” that the motion

2

would have been granted. (ECF No. 21 at 14). And, if the statements

3

had been suppressed, Hermanson claims he “most certainly would

4

have gone to trial.” (Id.)
1.

5

Background Information

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Detective McNeil interviewed Hermanson at the Lyon County

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Jail on the evening of March 18, 2013. (ECF No. 15-1 at 109-12).

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At the state postconviction evidentiary hearing, McNeil testified

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that Hermanson was wearing a “suicide gown” during the interview

10

because he had recently tried to kill himself. (Id. at 119).

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Nevertheless,

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[McNeil] was saying” and “asking.” (Id.) McNeil began the interview

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by advising Hermanson of his Miranda rights. (Id. at 116-17).

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Hermanson agreed to answer McNeil’s questions. (Id.) The two then

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discussed Hermanson’s first suicide attempt and his current state

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of mind:

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according

to

McNeil,

Hermanson

“understood

DETECTIVE MCNEIL: And you’re in a suicide gown because
of what happened when we -- when you were found?
HERMANSON: Uh-hum.
DETECTIVE MCNEIL: You know, I guess they took you, Care
Flighted you from Reno to South Lyon.
HERMANSON: Reno.
DETECTIVE MCNEIL: No. They took you to Reno to make sure
you’re okay. Are you feeling okay right now?
HERMANSON: I’m as good as can be, I guess.
DETECTIVE MCNEIL: I mean, you’re still not messed up
from -HERMANSON: No.
DETECTIVE MCNEIL: -- the pills you overdosed on or
anything like that?
HERMANSON: No. I’m hurting because always my back, they
won’t give me my pain meds.
DETECTIVE MCNEIL: Okay. That’s -- what I'm asking is you
said -- you’re coherent -9

what

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HERMANSON: Yes.
DETECTIVE MCNEIL: -- and you understand everything I’m
saying?
HERMANSON: Yeah.
DETECTIVE MCNEIL: And you -- and there is no side affects
[sic] for the medication or anything like that right
now, other than the fact you’d like to get some of your
pain medication -- pain meds?
HERMANSON: Exactly.
DETECTIVE MCNEIL: That’s a jail issue.
HERMANSON: Yes. And that’s fine.
DETECTIVE MCNEIL: All right.
(Id. at 119-20).
McNeil proceeded to question Hermanson about the allegations
concerning M.M.:

DETECTIVE MCNEIL: I'm going to ask you very simply one
question: Did you touch [M.M.’s] private area?
HERMANSON: Okay.
DETECTIVE MCNEIL: Do you understand what private area
is?
HERMANSON: Uh-hum.
DETECTIVE MCNEIL: What private area?
HERMANSON: Her vagina.
DETECTIVE MCNEIL: Okay. Her vagina. Did you touch it?
HERMANSON: Yes, I did, one time. Because she asked me
to.
DETECTIVE MCNEIL: Tell me about that.
HERMANSON: The only time I ever did because she asked me
where the ball that [K.H.] told her about was. And I
said it’s right there. That was all I ever did. That’s
all I ever touched. I never did anything else.

(Id. at 125).
Hermanson elaborated on the incident, claiming that in the
summer of 2012, M.M. had been discussing masturbation with him,
and that she had pulled her pants down and asked him to “show [him]
where the ball is that everybody’s talking about.” (Id. at 126).
At that point, Hermanson said, he “reached down and touched it

10

1

like that. And I said, ‘It’s right there, that’s where it is.’ And

2

I

3

subsequently clarified that by “ball,” he was referring to the

4

clitoris. (Id. at 126-27). He also acknowledged that his admission

5

“was enough to put [him] in prison” for “lewdness.” (Id. at 128).

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said,

‘That’s

2.

enough.’

I

walked

away.”

(Id.)

Hermanson

State-Court Determination

In affirming the denial of Hermanson’s state habeas petition,
the Nevada Court of Appeals held:

First, Hermanson argued his counsel was ineffective
for failing to file a motion to suppress the inculpatory
statements he made to a sheriff’s deputy. Hermanson
alleged his statements were not voluntarily made because
he had recently attempted suicide, overdosed on
medication, used illegal drugs, did not receive adequate
sleep, and suffered from further mental health and
physical issues. Hermanson failed to demonstrate his
counsel’s performance was deficient or resulting
prejudice.
“A confession is admissible only if it is made
freely and voluntarily” and “must be the product of a
rational intellect and a free will.” Passama v. State,
103 Nev. 212, 213-14, 735 P.2d 321, 322 (1987) (internal
quotation marks omitted). When reviewing whether a
confession was made voluntarily, “[v]oluntariness must
be determined by reviewing the totality of the
circumstances.” Gonzales v. State, 131 Nev. __, __, 354
P.3d 654, 658 (Nev. App. 2015).
The district court conducted an evidentiary hearing
and Hermanson’s counsel testified. Counsel testified he
had reviewed Hermanson’s statement and did not consider
filing a motion to suppress because it was clear to him
Hermanson did not have any difficulty understanding the
discussion with the deputy. A review of the record
reveals Hermanson’s counsel’s performance did not fall
below an objective standard of reasonableness in this
regard. See id.; see also Ford v. State, 105 Nev. 850,
853, 784 P.2d 951, 953 (1989) (tactical decisions of
counsel
“are
virtually
unchallengeable
absent
extraordinary circumstances.”). The district court
further concluded Hermanson’s testimony, in which he
asserted he did not comprehend the deputy’s questions,
to be incredible, particularly in light of Hermanson’s
detailed description during the interrogation of his
interactions with the victim. The district court’s
conclusions in this regard are supported by substantial
evidence.
11

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Further, the circumstances surrounding Hermanson’s
statement demonstrate it was voluntarily given. During
the
interrogation,
the
sheriff’s
deputy
advised
Hermanson of his Miranda rights and Hermanson agreed to
talk with the deputy. The deputy questioned Hermanson to
ensure he understood the conversation, and Hermanson
responded that he felt fine, he had no side effects from
any medication, and his only issue stemmed from back
pain due to a lack of pain medication while housed in
the county jail. Hermanson then explained to the deputy
that he had touched the victim’s vagina in response to
the victim’s anatomy questions. Hermanson acknowledged
his actions were sufficient for the authorities to
detain him. Under these circumstances, Hermanson failed
to demonstrate a reasonable probability he would have
refused to plead guilty and would have proceeded to trial
had counsel filed a motion to suppress his statements.
Therefore the district court did not err in denying this
claim.
(ECF No. 16-7 at 2-3).
3.

Conclusion

The Nevada Court of Appeals’ rejection of this claim was a
reasonable application of clearly established federal law and was
not based on an unreasonable application of the facts. Where, as
here, an ineffective-assistance claim rests on counsel’s failure
to file a motion to suppress evidence on constitutional grounds,
a petitioner must establish that (i) such a motion had merit and
(ii) there was a reasonable probability that, but for counsel’s
failure to file the meritorious motion to suppress, the petitioner
“would not have pleaded guilty and would have insisted on going to
trial.” Premo v. Moore, 562 U.S. 115, 131-32 (2011); Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986). The Nevada Court of Appeals
reasonably

concluded

that

(i)

the

circumstances

surrounding

Hermanson’s statements show that they were voluntarily given, and
(ii) Hermanson’s counsel was therefore not ineffective for failing
to move to suppress the statements.
The

admission

into

evidence

12

at

trial

of

an

involuntary

1

confession violates a defendant’s right to due process under the

2

Fourteenth Amendment. Lego v. Twomey, 404 U.S. 477, 478 (1972);

3

Jackson v. Denno, 378 U.S. 368, 376 (1964) (“It is now axiomatic

4

that a defendant in a criminal case is deprived of due process of

5

law if his conviction is founded, in whole or in part, upon an

6

involuntary confession”); see also Dickerson v. United States, 530

7

U.S. 428, 444 (2000) (explaining that the requirement that Miranda

8

rights

9

dispense with a due process inquiry into the voluntariness of a

10

confession). A confession is voluntary only if it is the product

11

of rational intellect and free will. Blackburn v. State of Alabama,

12

361

13

necessary

14

voluntary within the meaning of the Due Process Clause of the

15

Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167

16

(1986) (internal quotation marks omitted).

be

U.S.

given

199,

prior

208

predicate

to

a

custodial

(1960).

“[C]oercive

to

finding

the

interrogation

that

police
a

does

activity

confession

not

is

is

a

not

17

Whether a confession is involuntary must be analyzed within

18

the “totality of [the] circumstances.” Withrow v. Williams, 507

19

U.S. 680, 693 (1993). Factors to be considered include the degree

20

of police coercion; the length, location, and continuity of the

21

interrogation; and the defendant’s maturity, education, physical

22

condition, mental health, and age. Id. at 693-94. “This is a fact-

23

based

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reasonable application, and because the general standard requires

25

a case-by-case analysis, federal courts must provide even more

26

leeway under AEDPA in evaluating whether a rule application was

27

unreasonable.” Reno v. Davis, 46 F.4th 821, 836 (9th Cir. 2022)

28

(internal quotation marks and citation omitted).

analysis

that

inherently

13

allows

for

a

wide

range

of

1

Hermanson

contends

that

his

statements

were

involuntary

2

because, at the time of the interview, he was sleep-deprived, had

3

not eaten much recently, and was undergoing a “severe mental health

4

breakdown.” (ECF No. 54 at 11-14). During the interview, however,

5

Hermanson stated that he was no longer “messed up” from the pills

6

he had overdosed on during his first suicide attempt. (ECF No. 15-

7

1 at 119-20). Hermanson also made clear that he was “coherent” and

8

understood “everything [McNeil] was saying.” (Id.) Indeed, the

9

only

medical

issue

Hermanson

identified

was

his

back

pain,

10

complaining that the jail would not “give [him] [his] pain meds.”

11

(Id.) Moreover, Hermanson gave a detailed, coherent account of the

12

incident with M.M., claiming that he had touched her clitoris

13

during the summer of 2012 in response to her anatomy questions.

14

(Id. at 125-27). And while Hermanson contends that Detective McNeil

15

was “biased” because he had given McNeil’s daughter a tattoo

16

several years earlier, he points to no evidence that this fact

17

influenced McNeil’s handling of the interview. (ECF No. 54 at 11-

18

12).

19

Considering the circumstances surrounding the interview, the

20

Nevada Court of Appeals concluded that Hermanson’s statements were

21

voluntarily given. This ruling was not “so lacking in justification

22

that

23

existing law beyond any possibility for fairminded disagreement.”

24

Richter, 562 U.S. at 786-87. And, having found that Hermanson’s

25

statements were voluntary, the Nevada Court of Appeals reasonably

26

concluded that his counsel was not ineffective for failing to move

27

to suppress those statements. Thus, Hermanson is not entitled to

28

relief on Ground 1(B).

there

was

an

error

well

understood

14

and

comprehended

in

1

B.

Ground 1(A)

2

In Ground 1(A), Hermanson contends that his counsel was

3

ineffective for failing to conduct an adequate investigation. (ECF

4

No. 21 at 10). Hermanson claims that he “provided counsel with the

5

names of numerous people who could have provided exculpatory

6

information on [his] behalf.” (Id.) But, instead of listening to

7

these witnesses when they visited him, counsel “simply play[ed]

8

them Hermanson’s alleged statement incriminating himself.” (Id.)

9

According to Hermanson, had his counsel performed “this basic

10

investigation”

11

information, he would have gone to trial rather than pleading

12

guilty. (Id. at 11).
1.

13
14

At

the

and

uncovered

the

allegedly

exculpatory

Background Information
state

postconviction

evidentiary

hearing,

several

15

witnesses described the exculpatory information that Hermanson’s

16

counsel allegedly ignored. Cecilia Gilland, a friend of Hermanson,

17

testified

18

Hermanson of sexual misconduct, K.H. had said that “she knew that

19

[Hermanson] would never hurt her. That she was strong. And he had

20

never hurt her, and that he never could.” (ECF No. 15-1 at 60-61).

21

William Gilland, Cecilia’s husband, testified that approximately

22

one month after Hermanson’s arrest on allegations of molesting

23

M.M., K.H. had said “there is no way that [Hermanson] would ever

24

touch me or ever could touch me.” (Id. at 70-72). T.H., Hermanson’s

25

son, testified that M.M.’s mother (Jody Martin) “would have [him

26

and] M.M. have sex in front of Jody’s party friends.” (Id. at 99).

27

Hermanson’s counsel stated at the evidentiary hearing that he

28

had spoken to Cecilia Gilland, Jody Martin, and several other

that,

approximately

one

15

month

before

K.H.

accused

1

witnesses, but that he did not find the information they provided

2

to be “very helpful in this case.” (Id. at 182-84). He also

3

testified that the only written statement he received was from

4

Raymond McClory, who claimed that “didn’t see Mr. Hermanson ever

5

do anything with the kids” and “didn’t believe they were ever left

6

alone with him.” (Id. at 171). Hermanson’s counsel discounted this

7

statement because “everybody else”—including Jody Martin—said that

8

“at times” Hermanson was “left alone” with the victims. (Id.)

9

Hermanson’s counsel acknowledged that Cecilia Gilland had

10

mentioned her conversation with K.H. (Id. at 183-84). He explained,

11

however,

12

information, Hermanson had already told him he wanted to plead

13

guilty. (Id. at 184). Counsel testified that, because of his prior

14

conviction for lewdness with a minor, Hermanson “was looking at

15

life without [the possibility of parole],” and that “to limit his

16

liability,” he chose to take a plea deal that included a sentence

17

of life with parole eligibility after twenty-five years. (Id.)

18

Counsel also stated that he had talked with Hermanson about the

19

latter’s statements to law enforcement, telling him that the

20

confession “presented huge problems” because M.M. was “a 12-year-

21

old girl and he’s an adult,” and a jury “may not be very forgiving

22

in these kinds of cases.” (Id. at 166). At the time of his guilty

23

plea, Hermanson was forty years old. (ECF No. 17-1 at 1).

24
25
26
27
28

that

2.

by

the

time

Gilland

came

to

him

with

this

State-Court Determination

In affirming the denial of Hermanson’s state habeas petition,
the Nevada Court of Appeals held:

Second,
Hermanson
argued
his
counsel
was
ineffective for failing to investigate and interview
witnesses. Hermanson alleged he provided names of
16

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

witnesses he believed would aid his case, but his counsel
refused to take statements from those witnesses.
Hermanson
failed
to
demonstrate
his
counsel’s
performance was deficient or resulting prejudice. At the
evidentiary hearing, counsel stated he had discussed the
case with witnesses Hermanson had believed would provide
favorable evidence, but those persons had not actually
provided anything helpful to the defense. The district
court concluded counsel’s testimony was credible and
substantial evidence supports that conclusion.
Hermanson also presented the testimony of many of
these witnesses at the evidentiary hearing, but the
district court concluded that none of those witnesses
provided testimony that was exculpatory in nature.
Substantial evidence supports the district court’s
conclusion in this regard. In addition, the record
reveals Hermanson admitted to touching a victim’s
genitals and, had Hermanson rejected the State’s plea
offer and proceeded to trial, he would have faced a
sentence of life without the possibility of parole as he
had previously been convicted of a sexual offense
against a child. [FN 3]. See NRS 200.366(4). Under these
circumstances,
Hermanson
did
not
demonstrate
a
reasonable probability he would have refused to plead
guilty and would have proceeded to trial had counsel
conducted further investigation or interviews of
witnesses. Therefore, the district court did not err in
denying this claim.
[FN 3] We note Hermanson was originally charged
with lewdness with a child under the age of 14 and
sexual assault of a child under the age of 16.

17

(ECF No. 16-7 at 3-4).

18

3.

Conclusion

19

The Nevada Court of Appeals’ rejection of this claim was a

20

reasonable application of clearly established federal law and was

21

not based on an unreasonable application of the facts. To establish

22

the prejudice prong of his ineffective-assistance claim, Hermanson

23

“must convince the court that a decision to reject the plea bargain

24

would have been rational under the circumstances.” Padilla v.

25

Kentucky, 559 U.S. 356, 372 (2010). “This assessment, in turn,

26

will depend in large part on a prediction whether the [allegedly

27

exculpatory] evidence likely would have changed the outcome of a

28

trial.” Hill, 474 U.S. at 59. The prejudice assessment is an
17

1

objective one made “without regard for the idiosyncrasies of the

2

particular decisionmaker.” Id. at 59-60 (internal quotation marks

3

and citation omitted).

4

As the Nevada Court of Appeals explained, Hermanson was

5

originally charged with one count of lewdness with a child under

6

fourteen (M.M.), and an additional count of sexual assault of a

7

child under sixteen (K.H.). (ECF No. 14-2; ECF No. 14-3). Because

8

of his prior conviction for lewdness with a minor, Hermanson faced

9

a potential sentence of life without the possibility of parole if

10

convicted of either count. See NRS § 200.366(4) (West 2013); NRS

11

§ 201.230(3) (West 2013). The risk of conviction on at least one

12

count was high, because Hermanson admitted to law enforcement that

13

he had touched M.M.’s genitalia. (ECF No. 15-1 at 125-27). Thus,

14

to avoid a sentence of life without the possibility of parole,

15

Hermanson accepted a plea deal that included a sentence of life

16

with eligibility for parole after twenty-five years. (Id. at 184).

17

Faced

with

this

evidence,

the

Nevada

Court

of

Appeals

18

reasonably concluded that there was no “reasonable probability

19

[Hermanson] would have refused to plead guilty and would have

20

proceeded to trial had counsel conducted further investigation or

21

interviews of witnesses.” (ECF No. 16-7 at 4). Indeed, even if

22

counsel had conducted a more thorough investigation, Hermanson

23

still

24

lewdness with a child under fourteen based on his admissions to

25

law enforcement. And, as explained above, a conviction on that

26

count could have carried a sentence of life without the possibility

27

of parole. The plea deal thus offered Hermanson a substantial

28

benefit: the possibility of parole after twenty-five years, when

would

have

faced

a

significant

18

risk

of

conviction

for

1

he

would

be

2

fairminded jurist could conclude that Hermanson failed to show

3

that “a decision to reject the plea bargain would have been

4

rational under the circumstances.” Padilla, 559 U.S. at 372; see

5

also Mulder v. Schomig, 384 F. App’x 666, 667 (9th Cir. 2010)

6

(“Mulder has not shown prejudice from the alleged errors on the

7

part of counsel because there is no reasonable probability that he

8

would

9

sentences without the possibility of parole where there was very

10

little chance that a trial would have resulted in a better sentence

11

than the one he received by pleading.”).

have

in

his

elected

to

mid-sixties.

stand

trial

In

and

these

risk

circumstances,

consecutive

a

life

12

Against this, Hermanson contends that his “statement to the

13

police would not have led [him] to avoid a trial” because it

14

“clearly

15

convince the jury to reject the statement.” (ECF No. 54 at 10).

16

But, as explained above, the circumstances surrounding Hermanson’s

17

statements provide no basis to conclude that they were involuntary.

18

For all of these reasons, Hermanson is not entitled to relief on

19

Ground 1(A).

20

C.

21

In Ground 3, Hermanson alleges that his right to due process

22

was violated because “the court did not have the legal authority

23

to impose sentence” in the absence of a PSI. (ECF No. 21 at 20-

24

21). At the sentencing hearing, Hermanson’s counsel asked the court

25

to “waive the PSI requirement,” explaining that a PSI “would not

26

benefit the sentencing hearing or the [c]ourt” because there was

27
28

was

not

voluntary”

and

he

“had

strong

arguments

to

Ground 3 4

The Court addresses Ground 3 before Ground 2 because the facts relevant to
the former claim provide background for the latter.
4

19

1

“only one sentence that can be given in this case”—life with the

2

possibility of parole after twenty-five years. (ECF No. 14-8 at 6-

3

7). The court then canvassed Hermanson about the waiver:

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

THE COURT: You understand by statute you have a right to
a preliminary sentence investigation report to be done
before the Court sentences you?
A
Yes, sir.
THE COURT: All right. I’m just wondering, because we’ve
been getting all of these cases coming down on the PSIs
and the corrections and so forth, the prison will not
take him without a PSI, right?
PROBATION OFFICER: Your Honor, I think they will take
him.
THE COURT: As long as it’s waived on the record?
PROBATION
OFFICER:
Yeah.
Because
the
mandatory
psychosexual evaluation will be done at the prison
anyway, because it’s an A.
THE COURT: So, Mr. Hermanson, you understand if you want,
I will give you the opportunity to have that Presentence
Investigation Report?
A
Yes, sir, I do understand that.
Q
And you’ve discussed the Presentence Investigation
Report and its role in your sentencing with your
attorney?
A
Yes, sir.
Q
All right. And do you have any questions about what
the PSI does, or what the Presentence Investigation
Report is used for?
A
No, sir, I do not.
Q
All right. Do you believe it’s in your best interest
at this point in time to waive your right to a
Presentence
Investigation
Report
and
proceed
to
sentencing today?
A
Yes, sir, I do.
Q
All right. And is anyone threatening you to have
you do that today?
A
No, sir.
Q
Has anyone promised you anything if you were to do
that today?
A
No, sir.
Q
Okay. Do you wish any further time to think about
this?
A
No, sir.
20

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

THE COURT: So the Court will find that the defendant is
freely, voluntarily, and intelligently waiving his right
to a Presentence Investigation Report, and asking the
Court to sentence him today. We’ll put that on the
record.
(Id. at 14-16).
Following

this

colloquy,

the

court

pronounced

Hermanson

guilty of sexual assault of a child under sixteen and sentenced
him to “life in the Nevada State Prison with the possibility of
parole at 25.” (Id. at 16-17).
In affirming the denial of Hermanson’s motion to correct an
illegal sentence, the Nevada Supreme Court held:

Appellant argues that his sentence is illegal
because the district court did not have jurisdiction to
impose a sentence for a sexual offense without a
presentence investigation report. And because the
district court did not have jurisdiction to impose the
sentence, appellant argues that his due process rights
were violated.
A motion to correct an illegal sentence may only
challenge the facial legality of the sentence: either
the district court was without jurisdiction to impose a
sentence or the sentence was imposed in excess of the
statutory maximum. Edwards v. State, 112 Nev. 704, 708,
918 P.2d 321, 324 (1996). “A motion to correct an illegal
sentence ‘presupposes a valid conviction and may not,
therefore, be used to challenge alleged errors in
proceedings that occur prior to the imposition of
sentence.’” Id. (quoting Allen v. United States, 495
A.2d 1145, 1149 (D.C. 1985)). We conclude that the
district court did not err in denying the motion because
appellant failed to demonstrate that his sentence was
facially illegal or that the district court lacked
jurisdiction to impose a sentence.
While NRS 176.135(2) provides that a presentence
investigation report “[m]ust be made before the
imposition of sentence” for a defendant convicted of a
sexual offense, nothing in this statute precludes the
defendant from waiving the preparation of a presentence
investigation report. See Krauss v. State, 116 Nev. 307,
310, 998 P.2d 163, 165 (2000) (“Generally, a defendant
is entitled to enter into agreements that waive or
otherwise affect his or her fundamental rights.”); State
v. Lewis, 59 Nev. 262, 277, 91 P.2d 820, 825-26 (1939)
(“This court has often held that one charged with crime
may waive a statutory requirement.”). Here, appellant
requested to waive the presentence investigation report,
21

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

and the district court personally canvassed appellant to
ascertain that he entered the waiver knowingly and
voluntarily. The district court accepted the waiver and
sentenced appellant to life with parole eligibility
after 25 years, the only sentence available for the crime
in this case. See NRS 200.366(3)(b) (providing for a
sentence of life with the possibility of parole after 25
years for the crime of sexual assault on a child under
the age of 16 years). At the most, imposition of a
sentence
without
preparation
of
a
presentence
investigation report amounts to an error at sentencing,
an error that does not implicate the district court’s
jurisdiction. See Nev. Const. art. 6, § 6(1); NRS
171.010; Thomas v. State, 88 Nev. 382, 384, 498 P.2d
1314, 1315-16 (1972) (recognizing the mandatory language
in preparing a presentence investigation report, but
holding that preparation of the report pursuant to NRS
176.145 was not jurisdictional); see also United States
v. Cotton, 535 U.S. 625, 630 (2002) (“[T]he term
jurisdiction means . . . the courts’ statutory or
constitutional power to adjudicate the case.”) (emphasis
in original) (internal quotations marks omitted)). We
further conclude that the district court did not err in
concluding that appellant invited the error, and he
cannot now complain. See Rhyne v. State, 118 Nev. 1, 9,
38 P.3d 163, 168 (2002). And to the extent the
presentence
investigation
report
aids
in
parole
consideration, classification, or other prison matters,
the Division of Parole and Probation represented in
earlier proceedings below that a postconviction report
could be prepared as a substitute for a presentence
investigation report. See Parole and Probation Division
Directive Manual 6.3.124A (“[U]pon request of the Nevada
Board of Parole Commissioners, the Division will conduct
an investigation to provide the Parole Board with
timely, relevant and accurate information concerning
those
felony-level
case(s)
where
a
Presentence
Investigation Report was waived at the time of an
offender/inmate sentencing.”). Appellant’s claim that
his procedural due process rights were violated is
without merit for the reasons discussed above.
(ECF No. 51-7).
The

Nevada

Supreme

Court’s

rejection

of

Hermanson’s

due

process claim was a reasonable application of clearly established
federal law and was not based on an unreasonable application of
the facts. Hermanson contends that he had a due process right to
a PSI before being sentenced. (ECF No. 54 at 24-25). But even “the
most basic rights of criminal defendants” are “subject to waiver.”

22

1

Peretz v. United States, 501 U.S. 923, 936 (1991). A criminal

2

defendant may waive his constitutional rights as long as there is

3

clear and convincing evidence that the waiver was voluntary,

4

knowing, and intelligent. D.H. Overmyer Co., Inc. v. Frick Co.,

5

405 U.S. 174, 187 (1972).

6

Applying

these

well-established

principles,

the

Nevada

7

Supreme Court reasonably concluded that Hermanson knowingly and

8

voluntarily waived his right to a PSI. As noted above, the court

9

explained to Hermanson that he had a “right” to have a PSI prepared

10

before sentencing. (ECF No. 14-8 at 14). Hermanson then confirmed

11

that

12

sentencing” with his counsel, (ii) he believed it was in his best

13

interest to waive his right to a PSI and proceed to sentencing,

14

and (iii) he did not need “further time to think about this.” (Id.

15

at 14-16). Thus, even assuming that Hermanson had a due process

16

right

17

knowingly and voluntarily waived that right, and that therefore

18

his due process claim lacked merit. Cf. United States v. Shehadeh,

19

962 F.3d 1096, 1102 n.4 (9th Cir. 2020) (“That even constitutional

20

rights, such as the right to trial, are waivable further counsels

21

in favor of our holding that defendant may waive preparation of a

22

presentence report.”).

(i)

to

he

a

had

PSI,

discussed

a

the

fairminded

PSI

jurist

and

“its

could

role

in

conclude

[his]

that

he

23

Hermanson responds that his waiver was invalid because his

24

counsel mistakenly stated during sentencing that he could “get the

25

PSI when he’s in prison.” (ECF No. 14-8 at 7). As the Nevada

26

Supreme Court explained, however, “the Division of Parole and

27

Probation

28

postconviction report could be prepared as a substitute for a

represented

in

earlier

23

proceedings

.

.

.

that

a

1

presentence investigation report.” (ECF No. 51-7 at 3). Moreover,

2

although Hermanson claims that a postconviction report may not

3

“fully alleviate th[e] danger” that he “will never be able to go

4

before the parole board due to the absence of the PSI,” he provides

5

no evidence to support this assertion. (ECF No. 54 at 28-29). Thus,

6

there is no basis to conclude that counsel’s allegedly mistaken

7

statement about the possibility of “get[ting] the PSI” in prison

8

rendered Hermanson’s waiver involuntary or unknowing. Hermanson is

9

not entitled to relief on Ground 3.

10

D.

Grounds 2, 4, and 5

11

This Court previously held that Grounds 2, 4, and 5 were

12

technically exhausted but procedurally defaulted. (ECF No. 43 at

13

7). The Court deferred ruling on whether Hermanson could excuse

14

the default of those grounds until the merits disposition. (Id.)

15

Hermanson now contends that he can show cause and prejudice to

16

excuse the default of Grounds 2, 4, and 5 under Martinez v. Ryan,

17

566 U.S. 1 (2012). (ECF No. 54 at 19-23, 30-33).

18

Where a petitioner “has defaulted his federal claims in state

19

court pursuant to an independent and adequate state procedural

20

rule,” federal habeas review “is barred unless the prisoner can

21

demonstrate cause for the default and actual prejudice as a result

22

of the alleged violation of federal law, or demonstrate that

23

failure

24

miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750

25

(1991). To demonstrate cause, the petitioner must establish that

26

some external and objective factor impeded efforts to comply with

27

the state’s procedural rule. E.g., Murray v. Carrier, 477 U.S.

28

478, 488 (1986); Hiivala v. Wood, 195 F.3d. 1098, 1105 (9th Cir.

to

consider

the

claims

24

will

result

in

a

fundamental

1

1999). “[T]o establish prejudice, [a petitioner] must show not

2

merely a substantial federal claim, such that ‘the errors . . . at

3

trial created a possibility of prejudice,’ but rather that the

4

constitutional violation ‘worked to his actual and substantial

5

disadvantage.’” Shinn v. Ramirez, 142 S. Ct. 1718, 1733 (2022)

6

(citing Carrier, 477 U.S. at 494, 106 S. Ct. 2639 and quoting

7

United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in

8

original)).

9

The Supreme Court has provided an alternative means to satisfy

10

the cause requirement for purposes of overcoming a procedural

11

default for an ineffective-assistance-of-trial-counsel claim where

12

a petitioner can show that he received ineffective assistance of

13

counsel in his initial state habeas proceeding. Martinez, 566 U.S.

14

at 9. The Supreme Court outlined the necessary circumstances as

15

follows:

[W]here (1) the claim of “ineffective assistance of
trial counsel” was a “substantial” claim; (2) the
“cause” consisted of there being “no counsel” or only
“ineffective” counsel during the state collateral review
proceeding; (3) the state collateral review proceeding
was the “initial” review proceeding in respect to the
“ineffective-assistance-of-trial-counsel
claim”;
and
(4) state law requires that an “ineffective assistance
of trial counsel [claim] . . . be raised in an initialreview collateral proceeding.”

16
17
18
19
20
21
22
23
24
25
26
27
28

Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566
U.S. at 14, 18).
A procedural default will not be excused if the underlying
ineffective-assistance claim “is insubstantial,” i.e., lacks merit
or is “wholly without factual support.” Martinez, 566 U.S. at 14–
16

(citing

Miller-El

v.

Cockrell,

537

U.S.

322

(2003)).

In

Martinez, the Supreme Court cited the standard for issuing a

25

1

certificate of appealability as analogous support for whether a

2

claim is substantial. 566 U.S. at 14. A claim is substantial if a

3

petitioner shows “reasonable jurists could debate whether . . .

4

the [issue] should have been resolved in a different manner or

5

that the issues presented were ‘adequate to deserve encouragement

6

to proceed further.’” Miller-El, 537 U.S. at 336.

7

For the reasons explained below, the Court concludes that

8

Martinez does not excuse the default of Grounds 2, 4, and 5 because

9

Hermanson’s

10
11

underlying

ineffective-assistance

claims

are

not

“substantial.”
1.

Ground 2

12

In Ground 2, Hermanson alleges that his counsel provided

13

ineffective assistance by “inducing [him] to plead guilty on the

14

promise he could be sentenced without a PSI.” (ECF No. 54 at 19).

15

According to Hermanson, this promise was “illegal” because the

16

court could not sentence him “without a PSI first being prepared.”

17

(Id. at 20). Hermanson contends that he chose to plead guilty in

18

part because he was receiving inadequate treatment for his mental

19

health issues at the Lyon County Jail, and his counsel told him

20

that sentencing would be “expedite[d]”—and he would be sent to

21

prisoner sooner—if he waived preparation of a PSI. (Id. at 21-22).

22

Thus, Hermanson argues, if his counsel “had not made this promise,”

23

he “would not have accepted the deal and would have proceeded to

24

trial.” (Id. at 21).

25

Ground

2

does

not

raise

a

“substantial”

ineffective-

26

assistance claim because Hermanson has failed to establish that

27

his counsel performed deficiently. Martinez, 566 U.S. at 14. To

28

demonstrate deficient performance, a petitioner “must show that
26

1

counsel’s

representation

2

reasonableness.” Strickland, 466 U.S. at 688. The question is

3

whether,

4

“assistance was reasonable considering all the circumstances.” Id.

5

There is “a strong presumption that counsel’s conduct falls within

6

the wide range of reasonable professional assistance,” and in

7

assessing counsel’s performance, courts must make every effort “to

8

eliminate the distorting effects of hindsight.” Id. at 689.

under

fell

“prevailing

below

an

objective

professional

standard

norms,”

of

counsel’s

9

Here, Hermanson’s counsel allegedly advised him that he could

10

be sentenced without a PSI. Hermanson was, indeed, sentenced

11

without a PSI after he knowingly and voluntarily waived his right

12

to have that document prepared before sentencing. (ECF No. 14-8 at

13

14-17). Contrary to Hermanson’s assertion, counsel’s “promise”

14

that he could be sentenced without a PSI was not “illegal.” The

15

alleged illegality of this promise rests on Hermanson’s contention

16

that the court “simply did not have the authority” to sentence him

17

without a PSI. (ECF No. 54 at 20). That contention is incorrect.

18

As noted above, the Nevada Supreme Court ruled that “nothing in

19

th[e]

20

Hermanson]

21

investigation report.” (ECF No. 51-7 at 2). Because counsel’s

22

advice was a correct statement of Nevada law, Hermanson cannot

23

demonstrate deficient performance. Thus, Ground 2 does not raise

24

a “substantial” ineffective-assistance claim, and Hermanson cannot

25

rely on Martinez to overcome the default of this claim.

26

[relevant]
from

2.

statute
waiving

precludes
the

[a]

preparation

defendant
of

a

[such

as

presentence

Ground 4

27

In Ground 4, Hermanson alleges that his counsel provided

28

ineffective assistance because he had a conflict of interest. (ECF
27

1

No. 54 at 30). In 2002, Hermanson’s counsel represented M.M.’s

2

biological father in an abuse-or-neglect case under NRS Chapter

3

432B. (ECF No. 15-1 at 88, 185-86). Specifically, Child Protective

4

Services took M.M. away from her father and “awarded her to the

5

State.” (Id. at 88). Hermanson’s counsel subsequently represented

6

M.M.’s father as a “public defender” in the abuse-or-neglect case.

7

(Id.) At the state postconviction evidentiary hearing, Hermanson’s

8

counsel testified that he believed M.M.’s father “worked the case

9

plan” and that the case was ultimately “closed.” (Id. at 186). The

10

record does not include any additional information about the case.

11

Hermanson contends that, in representing M.M.’s father in the

12

abuse-or-neglect case, counsel “invariably argued that the child

13

would be safe in the father’s custody.” (ECF No. 54 at 30). Thus,

14

according to Hermanson, counsel “had to consider” M.M.’s welfare

15

during his representation of her father. (Id.) That allegedly

16

“conflict[ed] with [counsel’s] obligations in this case where he

17

was representing a defendant who had been accused of harming that

18

same child.” (Id.)

19

Ground

4

fails

to

raise

a

“substantial”

ineffective-

20

assistance claim because there is no basis to conclude that the

21

alleged

22

Martinez, 566 U.S. at 14. The right to counsel includes the right

23

to assistance by a conflict-free attorney. Wood v. Georgia, 450

24

U.S. 261, 271 (1981) (citing Cuyler v. Sullivan, 446 U.S. 335

25

(1980) and Holloway v. Arkansas, 435 U.S. 475, 481 (1978)). “[T]he

26

possibility of conflict is insufficient to impugn a criminal

27

conviction. In order to demonstrate a violation of his Sixth

28

Amendment

conflict

rights,

adversely

a

defendant

affected

must
28

counsel’s

establish

performance.

that

an

actual

1

conflict of interest adversely affected his lawyer’s performance.”

2

Cuyler, 446 U.S. at 350. An “actual conflict” is “a conflict that

3

affected counsel’s performance—as opposed to a mere theoretical

4

division of loyalties.” Mickens v. Taylor, 535 U.S. 162, 175

5

(2002).

6

To establish an “adverse effect,” a defendant must prove “that

7

some plausible alternative defense strategy or tactic might have

8

been pursued but was not and that the alternative defense was

9

inherently in conflict with or not undertaken due to the attorney’s

10

other loyalties or interests.” United States v. Wells, 394 F.3d

11

725, 733 (9th Cir. 2005). In other words, “[t]o establish that a

12

conflict of interest adversely affected counsel’s performance, the

13

defendant need only show that some effect on counsel’s handling of

14

particular aspects of the [case] was ‘likely.’” United States v.

15

Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992). Thus, “[w]hen faced

16

with a defendant’s claim that her counsel operated under an actual

17

conflict, [t]he central question that we consider in assessing a

18

conflict’s adverse effect is what the advocate [found] himself

19

compelled to refrain from doing because of the conflict.” United

20

States v. Walter-Eze, 869 F.3d 891, 901 (9th Cir. 2017) (internal

21

quotation marks and citation omitted).

22

Hermanson

fails

to

establish

that

the

alleged

conflict

23

“significantly affected counsel’s performance.” Mickens, 535 U.S.

24

at

25

allegedly

26

“illegal” promise that Hermanson could be sentenced without a PSI,

27

and his failure to investigate the case. (ECF No. 54 at 30). As to

28

the first alleged error, Hermanson’s counsel correctly advised him

172-73.

Hermanson
stemmed

points

from

the

to

two

“errors

conflict

29

of

by

counsel”

interest:

that

counsel’s

1

that he could be sentenced without a PSI. Because counsel provided

2

an accurate statement of Nevada law, the Court cannot conclude

3

that the alleged conflict “adversely affected” his performance in

4

this respect. Cuyler, 446 U.S. at 350.

5

As to the second alleged error, Hermanson has failed to

6

establish

7

“likely” attributable to the conflict. Miskinis, 966 F.2d at 1268.

8

At

9

counsel

the

that

state

counsel’s

handling

postconviction

explained

that

he

of

the

evidentiary
had

spoken

investigation

hearing,
to

was

several

Hermanson’s
potential

10

witnesses, but that the information they provided was not “very

11

helpful in this case.” (ECF No. 15-1 at 182-84). For example,

12

counsel acknowledged receiving a written statement from Raymond

13

McClory stating that he “didn’t see Mr. Hermanson ever do anything

14

with the kids” and “didn’t believe they were ever left alone with

15

him." (Id. at 171). Counsel explained, however, that “everybody

16

else”—including Jody Martin—said that “at times” Hermanson was

17

“left alone” with the victims. (Id.)

18

Counsel also acknowledged that Cecilia Gilland had mentioned

19

her conversation with K.H., in which the victim allegedly said

20

that Hermanson “had never hurt her, and that he never could.” (Id.

21

at 60-61, 183-84). According to counsel, however, by the time he

22

received this information, Hermanson had already told him he wanted

23

to plead guilty. (Id. at 184). That decision was prompted in large

24

part by Hermanson’s desire to avoid a sentence of life without the

25

possibility of parole—a substantial risk given that Hermanson had

26

admitted to law enforcement that he had touched M.M.’s genitalia.

27

(Id. at 125-27, 184). In these circumstances, there is no basis to

28

conclude that “some plausible alternative defense strategy or
30

1

tactic might have been pursued but was not and that the alternative

2

defense was inherently in conflict with or not undertaken due to

3

[counsel’s] other loyalties or interests.” Wells, 394 F.3d at 733.

4

Accordingly,

5

“substantial,” and Martinez does not excuse the default of Ground

6

4.
3.

7
8
9

Hermanson’s

ineffective-assistance

claim

is

not

Ground 5

In Ground 5, Hermanson alleges that his counsel rendered
ineffective

assistance

by

(i)

mistakenly

informing

him

that,

10

because he pled guilty, “he was not entitled to bring an appeal”;

11

and (ii) failing to file a notice of appeal to “preserve [his]

12

right to appeal.” (ECF No. 54 at 32-33). Hermanson contends that

13

his counsel’s advice was incorrect because, under Nevada law, a

14

guilty plea “does not foreclose an appeal,” but instead limits the

15

issues

16

jurisdictional, or other grounds challenging the legality of the

17

proceedings.” (Id. at 32 (citing NRS § 177.015(4))). According to

18

Hermanson, but for his counsel’s mistaken advice, he would have

19

brought a direct appeal challenging “the court’s legal authority

20

to impose a sentence without a” PSI. (Id.)

21

that

Ground

can

5

be

fails

raised

to

on

raise

appeal

a

to

“constitutional,

“substantial”

ineffective-

22

assistance claim. Martinez, 566 U.S. at 14. The Strickland “test

23

applies

24

ineffective for failing to file a notice of appeal.” Roe v. Flores-

25

Ortega,

26

performance under Flores-Ortega, a petitioner must make one of the

27

following showings: (i) that counsel “fail[ed] to follow the

28

defendant’s express instructions with respect to an appeal”; (ii)

to
528

claims
U.S.

.

.

470,

.

that

477

counsel

(2000).

31

To

was

constitutionally

establish

deficient

1

that “a rational defendant would want to appeal (for example,

2

because there are nonfrivolous grounds for appeal)” and counsel

3

did not consult with the defendant about appealing; or (iii) that

4

the defendant “reasonably demonstrated to counsel that he was

5

interested in appealing” and counsel did not consult with the

6

defendant. Id. at 478, 480. “Consult,” in this context, “means

7

advising the defendant about the advantages and disadvantages of

8

taking an appeal and making a reasonable effort to discover the

9

defendant’s wishes.” Id. at 471.

10

To show prejudice, the petitioner “must demonstrate that

11

there is a reasonable probability that, but for counsel’s deficient

12

failure to consult with him about an appeal, he would have timely

13

appealed.” Id. at 484. “[E]vidence that there were nonfrivolous

14

grounds for appeal or that the defendant in question promptly

15

expressed a desire to appeal will often be highly relevant in

16

making this determination.” Id. at 485. Although “the performance

17

and prejudice prongs may overlap, they are not in all cases

18

coextensive.” Id. at 486. Specifically, “[t]o prove deficient

19

performance, a defendant can rely on evidence that he sufficiently

20

demonstrated

21

evidence alone is insufficient to establish that, had the defendant

22

received reasonable advice from counsel about the appeal, he would

23

have instructed his counsel to file an appeal.” Id.

24

to

Hermanson’s

counsel

his

interest

ineffective-assistance

in

an

claim

appeal.

is

But

such

insubstantial

25

because he fails to show that, but for his counsel’s allegedly

26

deficient conduct, he would have appealed. 5 First, as explained

27
28

The Court assumes, without deciding, that Hermanson’s counsel failed to
“consult” with him about an appeal within the meaning of Flores-Ortega.
5

32

1

above, Hermanson pled guilty in large part to avoid the very real

2

possibility of receiving a sentence of life without the possibility

3

of parole. (ECF No. 15-1 at 184). The plea agreement gave Hermanson

4

a substantial benefit—the prospect of getting out of prison during

5

his lifetime. (ECF No. 14-9). Second, Hermanson fails to point to

6

any nonfrivolous grounds for appeal. He claims that he would have

7

argued on direct appeal that the court could not sentence him

8

without a PSI. (ECF No. 54 at 32). But, as the Nevada Supreme Court

9

later held, the law permitted the court to sentence Hermanson

10

without a PSI given his waiver of that requirement, and Hermanson

11

could not raise the issue on appeal in any event because he asked

12

the court to forgo a PSI and proceed with sentencing. (ECF No. 51-

13

7). In these circumstances, Hermanson has not established that,

14

had he “received reasonable advice from counsel about the appeal,

15

he would have instructed his counsel to file an appeal.” Flores-

16

Ortega, 528 U.S. at 486.

17

Accordingly, because Hermanson has failed to satisfy the

18

prejudice

19

substantial, and Martinez does not excuse the default of Ground

20

5. 6

prong,

his

ineffective-assistance

claim

is

not

21

E.

Certificate of Appealability

22

This is a final order adverse to Hermanson. Rule 11 of the

23
24
25
26
27
28

Hermanson requests that the Court conduct an evidentiary hearing. (ECF No. 21
at 25). But he fails to explain what evidence would be presented at such a
hearing. Furthermore, the Court has already determined that Hermanson is not
entitled to relief, and neither further factual development nor any evidence
that may be offered at an evidentiary hearing would affect this Court’s reasons
for denying relief. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f
the record refutes the applicant’s factual allegations or otherwise precludes
habeas relief, a district court is not required to hold an evidentiary
hearing.”); see also 28 U.S.C. § 2254(e)(2). Thus, Hermanson’s request for an
evidentiary hearing is denied.
6

33

1

Rules Governing Section 2254 Cases requires the Court to issue or

2

deny a certificate of appealability. Therefore, the Court has sua

3

sponte evaluated the claims in the second amended petition for

4

suitability for the issuance of a certificate of appealability.

5

See 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864-65

6

(9th Cir. 2002). Pursuant to 28 U.S.C. § 2253(c)(2), a certificate

7

of appealability may issue only when the petitioner “has made a

8

substantial showing of the denial of a constitutional right.” With

9

respect to claims rejected on the merits, a petitioner “must

10

demonstrate

11

court’s

12

wrong.” Slack

13

Barefoot

14

procedural rulings, a certificate of appealability will issue only

15

if reasonable jurists could debate (i) whether the petition states

16

a valid claim of the denial of a constitutional right and (ii)

17

whether this Court’s procedural ruling was correct. Id.

18

that

assessment
v.

v.

reasonable
of

the

McDaniel,

Estelle,

463

jurists

constitutional
529

U.S.

473,

U.S.

880,

893

find

the

claims
484
&

debatable

(2000)

n.4

district
or

(citing

(1983)).

For

Applying these standards, the Court finds that a certificate

19

of appealability is unwarranted.

20

IV.

21

would

CONCLUSION
IT

THEREFORE

IS

ORDERED

that

Hermanson’s

second

amended

22

petition for a writ of habeas corpus under 28 U.S.C. § 2254 (ECF

23

No. 21) is DENIED.

24
25
26
27
28

IT FURTHER IS ORDERED that Hermanson is DENIED a certificate
of appealability.
IT FURTHER IS ORDERED that the Clerk of the Court shall
substitute Fernandies Frazier for Respondent Isidro Baca.
/
34

1
2
3

IT FURTHER IS ORDERED that the Clerk of the Court shall enter
judgment accordingly and close this case.
DATED: this 12th day of December, 2022.

4
5

HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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7
8
9
10
11
12
13
14
15
16
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19
20
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22
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25
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35