Hernandez (Juan) v. Warden ( 2014 )

 insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985);
Kirksey v. State, 112 Nev. 980, 988, 923 P.2d 1102, 1107 (1996). Both
components of the inquiry must be shown. Strickland, 466 U.S. at 697.
We give deference to the district court's factual findings if supported by
substantial evidence and not clearly erroneous but review the court's
application of the law to those facts de novo. Lader v. Warden, 121 Nev.
682, 686, 120 P.3d 1164, 1166 (2005). When a post-conviction petition
raises claims supported by specific factual allegations which, if true, would
entitle the petitioner to relief, the petitioner is entitled to an evidentiary
hearing unless those claims are repelled by the record. Hargrove v. State,
100 Nev. 498, 503, 686 P.2d 222, 225 (1984).
In his petition and supplemental petition for a writ of habeas
corpus, Hernandez claimed that his counsel was ineffective for failing to:
(1) consult with him regarding an appeal, inform him of the right to an
appeal, and file a notice of appeal; (2) investigate and call key witnesses;
(3) investigate his life history, the challenges he faced, and the violence he
faced as a child and obtain an expert evaluation showing he was a low risk
to reoffend and present this information as mitigating evidence at
sentencing; and (4) "object to sentencing structure and other objections."
Hernandez did not allege that he expressed dissatisfaction with his
sentence to his counsel or inquired about an appeal within the relevant
appeal period. See Toston v. State, 127 Nev. „ 267 P.3d 795, 801
(2011). He also did not allege any specific factual allegations in support of
claims 2 and 4. Further, he did not demonstrate that he would be able to
obtain an evaluation stating that he is a low risk to reoffend and he did
not specify what testimony the identified individuals would have
presented that would have differed from the arguments counsel made in
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mitigation at sentencing, nor did he demonstrate that further
investigation or the testimony of these individuals would have resulted in
a different sentence.' Therefore, we conclude that the district court did
not err by concluding that Hernandez failed to support his claims with
specific factual allegations that, if true, would entitle him to relief and
denying the petition without conducting an evidentiary hearing.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
cc: Chief Judge, The Tenth Judicial District
Hon. Robert E. Estes, Senior Judge
The Law Office of Jacob N. Sommer
Churchill County District Attorney/Fallon
Churchill County Clerk
'Hernandez entered a plea pursuant to North Carolina v. Alford,
400 U.S. 25 (1970), to attempted murder and was sentenced to a term of 5
to 20 years.
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