Case 3:09-cv-00545-MMD-CSD Document 349 Filed 03/27/25 Page 1 of 130
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`* * *
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` Case No. 3:09-cv-00545-MMD-CSD
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`MERITS ORDER
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`FERNANDO NAVARRO HERNANDEZ,
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`Petitioner,
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`JOHN HENLEY, et al.,
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`v.
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`Respondents.
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`I.
`
`SUMMARY
`Petitioner Fernando Navarro Hernandez was sentenced in Nevada state court to
`death after a jury found him guilty of burglary while in possession of a weapon, first-degree
`murder with the use of a deadly weapon, second-degree kidnapping, and unlawful sexual
`penetration of a dead body. (ECF No. 53-3.) This matter is before the Court for
`adjudication of the merits of Hernandez’s Fifth-Amended Petition for Writ of Habeas
`Corpus under 28 U.S.C. § 2254, in which Hernandez alleges that his trial counsel—David
`Schieck and Christopher Oram—were ineffective, the jury was biased, there were voir
`dire errors, improper jury instructions were given, the prosecution committed misconduct,
`there was insufficient evidence to sustain his convictions, his appellate counsel was
`ineffective, the bench conferences during the trial were unrecorded, the defense should
`have been allowed to argue last, lethal injection is unconstitutional, Nevada’s death
`penalty scheme is cruel and unusual, the Nevada Supreme Court improperly reweighed
`the jury’s death sentence after striking an aggravating factor, and there were cumulative
`errors. (ECF No. 221 (“Fifth-Amended Petition”).) This matter is also before the Court for
`adjudication of Hernandez’s motion for leave to conduct discovery and motion for
`evidentiary hearing. (ECF Nos. 324, 325 (“Motions”).) For the reasons discussed below,
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`the Court denies the Fifth-Amended Petition, denies the Motions, and grants a Certificate
`of Appealability for grounds 1a, 1b, 1e, 1f, 4, and 29.
`II.
`BACKGROUND
`A.
`Factual Background1
`1.
`Guilt phase of the trial
`Sergeant David Swoboda with the Las Vegas Metropolitan Police Department
`(“LVMPD”) testified that he was driving from Las Vegas, Nevada to Laughlin, Nevada on
`October 6, 1999, at around 7:00 a.m., when he saw a black Ford Probe traveling above
`the speed limit. (ECF No. 255-1 at 40–43.) After the car passed Sergeant Swoboda, it
`sped up, traveling at upwards of 96 miles per hour. (Id. at 44.) Sergeant Swoboda caught
`up with the car, and once the car finally stopped, Hernandez, the driver of the car, “placed
`his hands in the air” and said, “just shoot me, just shoot me, just kill me.” (Id. at 46–47.)
`Hernandez then walked to the passenger side the car, “leaned up against the glass . . . ,
`and said I’m sorry, baby.” (Id. at 48.) Hernandez’s three-year-old daughter, A.H.,2 was in
`the car and “crying heavily.” (Id. at 49.)
`Sergeant Swoboda handcuffed Hernandez, who smelled like alcohol, and then
`attempted to calm A.H. (Id. at 49, 52.) Sergeant Swoboda asked Hernandez for
`identification and “noticed there [were] some superficial cuts about his face and a little cut
`on his hand.” (Id. at 50.) Hernandez told Sergeant Swoboda that he had gotten into a fight
`with his ex-wife. (Id.) Sergeant Swoboda ran Hernandez’s name and found that “there
`was an active protective order and stalking order against him that was filed by his ex-
`wife,” Donna Hernandez (hereinafter “Donna”). (Id. at 51.) Sergeant Swoboda “advised
`dispatch of the situation,” requesting that someone go to Donna’s house to check on her.
`(Id. at 52.) Sergeant Swoboda then checked on A.H. again and noticed “a blood stain on
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`1The Court makes no credibility or other factual findings regarding the truth or
`falsity of this evidence from the state court. The Court’s summary is merely a backdrop
`to its consideration of the issues presented in the Fifth-Amended Petition.
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`2The Court refers only to the minor child by her initials.
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`the back seat.” (Id. at 55.) At that time, A.H. told Sergeant Swoboda that “daddy hurt
`mommy real bad.” (Id.)
`A horizontal gaze nystagmus test was performed on Hernandez, and because
`Hernandez “failed all six points” of the test, he was arrested for DUI. (Id. at 56–57, 76.)
`After Sergeant Swoboda allowed Hernandez to give A.H. a kiss, Hernandez stated, “I
`killed them. I killed her.” (Id. at 58.) Sergeant Swoboda informed Hernandez of his
`Miranda rights, and during the drive to the police substation in Laughlin, Hernandez
`repeatedly told Sergeant Swoboda “to kill him” and acted in a bizarre manner. (Id. at 59,
`64, 67.)
`LVMPD Detective Thomas Allen, who assisted Sergeant Swoboda during
`Hernandez’s traffic stop, testified that Hernandez had scratches on his face and a cut on
`his right hand, and Hernandez explained that the scratches were from A.H. and the cut
`happened at work. (ECF No. 255-1 at 77, 80–81.) A.H., who “had some blood stains on
`the back of her pajamas . . . and a few on the front,” told Detective Allen that she and
`Hernandez were on their way to Mexico and that Hernandez “hurt mommy real bad” and
`“beat up mommy on the stairs.” (Id. at 88, 94–95.)
`LVMPD Officer Steven Leyba, who conducted Hernandez’s sobriety tests at the
`police substation in Laughlin, testified that Hernandez told him that “he had two to three
`beers, and he had begun drinking at . . . 11 p.m. the night before and had stopped drinking
`at 1:00 a.m. that morning.” (ECF No. 255-1 at 125, 129.) Hernandez “had blood shot
`watery eyes,” slurred speech, and smelled of alcohol. (Id. at 129–30.) Hernandez did not
`pass the walk-and-turn test, one-legged-stand test, or a second horizontal gaze
`nystagmus test. (Id. at 132–35.) Two breathalyzer tests were then performed at around
`9:00 a.m., indicating that Hernandez had a .15 and .16 blood alcohol content. (Id. at 137.)
`LVMPD Officer Bernard Whalen III, who transported Hernandez from the police
`substation in Laughlin to the Clark County Detention Center, testified that, during that
`drive, Hernandez asked him “to let him out of the vehicle so that he could attempt to run
`away and for [Officer Whalen] to shoot him.” (ECF No. 255-1 at 156, 160.) Hernandez
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`also “kept commenting his life was over.” (Id.) After getting to the Clark County Detention
`Center booking area, Hernandez “beg[a]n to bash the back of his head against the
`concrete wall.” (Id. at 162.)
`LVMPD Detective Thomas Thowsen interviewed Hernandez, and Hernandez told
`him that “he was at his ex-wife’s house the night before, and her boyfriend Francisco
`showed up. They got into a fight so he took his daughter and left.” (ECF No. 256-1 at 21–
`22.) Detective Thowsen later met with Francisco Landeros, who explained that he was
`not Donna’s boyfriend but, rather, her roommate, following Donna and Hernandez’s
`recent divorce. (Id. at 27–28.)
`LVMPD crime scene analyst Kelly Neil took photographs of Hernandez at the Clark
`County Detention Center, showing a laceration on his right hand, “some scratches
`primarily located on the left side of his face and neck and some red marks and abrasions
`on his arms and on his back or on his torso.” (ECF No. 255-1 at 176.) Hernandez also
`had blood stains on the right side of his shirt and the front side of his pants. (Id. at 178.)
`LVMPD Officer James Churches responded to a welfare check on Donna’s house
`following Hernandez’s arrest for a DUI. (ECF No. 255-1 at 107, 109.) After nobody
`answered the door, Officer Churches looked through a window and saw a woman lying
`unconscious on the stairwell landing. (Id. at 111.) The woman had “a large amount of
`blood on her body,” “[s]he was not completely dressed,” and “she was laying in a very
`unnatural looking position.” (Id.) LVMPD Officer Kerry Reusch, who was at Donna’s house
`with Officer Churches, testified that, following Officer Churches’ observations, he kicked
`in the door to Donna’s house and saw Donna “on the stairway leading to the second floor.”
`(Id. 117.) Donna “was partially clothed and . . . there was a knife which appeared to be
`broken in half laying next to her.” (Id. at 119.) Donna did not have a pulse. (Id. at 120.)
`Dr. Lary Simms, Clark County’s Chief Medical Examiner, performed Donna’s
`autopsy and testified that Donna’s “cause of death was strangulation” and that she also
`suffered from “significant contributing conditions including multiple stab and incised
`wounds and blunt head trauma.” (ECF No. 257-1 at 69, 72, 76.) One “stab wound went
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`into [her] chest into the central portion of the lung,” causing Donna’s left lung to collapse.
`(Id. at 87–88.) According to Dr. Simms, “this wound [was] a very directed wound toward
`the heart,” and “[t]he only way that can come about is if [Donna] has ceased to struggle,
`so the assailant [could] aim the weapon where he want[ed] it to go.” (Id. at 89–90.) Donna
`also suffered stab wounds to the left and right sides of her neck. (Id. at 88.) Further, a
`knife “was retrieved from [Donna’s] vagina” that “went to the left side of [Donna’s] cervix
`and coursed up into the area of the left ovary,” perforating the vagina wall and ending up
`partially in her abdominal cavity. (Id. at 93–94.) Dr. Simms testified that this final stabbing
`“more likely” occurred after Donna had already died. (Id. at 94.)
`Annie Griego, Donna’s mother, testified that Donna and Hernandez were married
`in October of 1991 and divorced in October 1998. (ECF No. 256-1 at 144–45, 147.)
`Following their divorce, regarding custody of A.H., Hernandez would pick up A.H. “at day
`care on Wednesdays at noon and bring her back to [Griego’s] home on Friday[s] at five
`o’clock” in the evening. (Id. at 149.) Approximately six months before the murder, on
`March 24, 1999, Hernandez called Griego at 11:20 p.m. and “told [her] that he had seen
`[Donna] and [Landeros] together . . . and that the was going to kill [Donna].” (Id. at 153.)
`Hernandez called Griego again 5 to 10 minutes later and “told [her] that he had a lot of
`money in Mexico and he was going to take [A.H.] to Mexico and raise her there because
`her mom was an unfit mother.” (Id. at 153–54.) Hernandez called Griego a third time and
`“asked [her] what kind of school [she] had sent [her] daughter to for her to be doing all
`these bad things.” (Id. at 154.) Following these phone calls, on March 26, 1999, Donna
`got a protective order against Hernandez. (Id. at 157.) That protective order was extended
`and set to expire in April 2000. (Id. at 160.) When Griego picked up A.H. from child
`protective services following Hernandez’s arrest, A.H. told Griego “that her daddy dead
`[sic] her mommy.” (Id. at 166.)
`Landeros, whose sister was married to Hernandez’s brother, testified that there
`was no romantic relationship between he and Donna and that he had only rented a room
`from her for about four months. (ECF No. 256-1 at 182–183.) From October to December
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`1998, the time that he lived with Donna, Landeros heard messages left by Hernandez on
`Donna’s answering machine saying that Donna “was a common woman, a whore. She
`was a fool, that she didn’t know what she was doing.” (Id. at 184–86.) Hernandez also
`stated on a couple of messages that “he was going to kill her.” (Id. at 187.) On March 24,
`1999, after he had moved out of Donna’s house, Landeros was driving Donna home from
`work when they saw Hernandez’s car outside of Donna’s home. (Id. at 187–89.)
`Hernandez drove away upon seeing them, and Landeros drove his truck into Donna’s
`garage. (Id. at 190.) Donna attempted to close the garage door, but Hernandez drove his
`car under the door, causing it to reopen. (Id. at 191.) Hernandez then exited his car and
`tried to hit Landeros. (Id. at 192.) Landeros subdued Hernandez and then let him go, and
`Hernandez said, “you’re going to die dogs.” (Id. at 194.)
`Rafael Meza, a friend of Hernandez, testified that Hernandez, who was intoxicated
`at the time, visited his home a couple of weeks before Donna’s death. (ECF No. 256-1 at
`126–27, 135.) At this visit, Hernandez was sad and upset and “said that he had been
`thinking of killing himself because he [could] no longer put up with the situation of his child
`being molested and somebody living with the ex-wife, and he wanted to end it.” (Id. at
`128, 143.) Hernandez also told Meza that “[h]e wanted to kill himself. He wanted to kill
`the baby. He wanted to kill Donna.” (Id. at 129.)
`Sandra Buterbaugh testified she had spoken with Donna about Hernandez before
`Donna’s death and that Donna told her that Hernandez had said “he was going to make
`[Donna’s] life very sorry. He wanted the child. He was going to take the child and leave
`the country and go to Mexico, and she was very afraid that was going to happen.” (ECF
`No. 257-1 at 8.)
`LVMPD criminalist David Welch testified that he obtained DNA profiles for Donna,
`Hernandez, and Landeros. (ECF No. 257-1 at 47.) According to Welch, Donna’s blood
`was found on a ring Hernandez had been wearing at the time of his arrest; both Donna’s
`and Hernandez’s blood was found on the blade of the kitchen knife at the crime scene;
`Hernandez’s blood was found on the entryway floor, north hallway wall, and kitchen floor
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`in Donna’s house; and both Donna’s and Hernandez’s blood was found on A.H.’s
`pajamas. (Id. at 51–54.) Landeros’s blood was not found on any of these items. (Id. at
`53.) LVMPD print examiner Steven Scarborough testified that he was “absolutely certain”
`that “Hernandez’s palm print was left on the knife handle” found on the stairway of
`Donna’s house. (ECF No. 157-1 at 10, 27.) Ramon Paz, Donna’s neighbor, testified that
`on October 6, 1999, at “[a]bout 5:30, 5:45” the morning of the murder, he saw
`Hernandez’s car parked “sideways” in Donna’s driveway. (ECF No. 255-1 at 31–32.)
`Hernandez’s defense at trial was to concede that he killed Donna but to argue that
`he was not guilty of first-degree murder. The defense called witnesses to demonstrate
`that he was guilty, at most, of second-degree murder, including witnesses to show that
`he still loved Donna, Donna had been seeing him voluntarily in violation of her restraining
`order, he and Donna were contemplated getting back together, and he did not premediate
`the murder given that he had not made any plans to escape to Mexico with A.H.
`Sylvia Hernandez, the director of A.H.’s preschool, testified that she saw
`Hernandez and Donna together a few days before Donna’s death and that Hernandez
`appeared “[n]ormal.” (ECF No. 284-1 at 9, 12–14.) Juan Trillo testified that, in the month
`before Donna’s death, he had seen Hernandez and Donna together in Hernandez’s car
`“a couple times,” and Hernandez had “told [him] that he was trying to get [Donna] back.”
`(Id. at 41, 43.) Armando Martinez, Hernandez’s neighbor, testified that he had seen
`Donna at Hernandez’s house. (ECF No. 257-3 at 22–23.) Nellie Hernandez (hereinafter
`“Nellie”), Hernandez’s coworker, testified that Hernandez “was pretty upset about” his
`divorce to Donna and “wanted to be with his family.” (ECF No. 284-1 at 20–21.) Nellie
`also testified that she packed up some of Hernandez’s belongings after he was arrested,
`and Hernandez’s passport and A.H.’s birth certificate were still at his house. (Id. at 27.)
`Defense counsel also read the following stipulation to the jury: “the caller ID on Donna’s
`home telephone showed that [Hernandez’s] home phone number called at 9:32 p.m. on
`October 5, 1999.” (ECF No. 257-3 at 25.)
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`The defense also attempted to show that Hernandez was delusional. William
`Sheldon, an investigator for Child Protective Services, testified that Hernandez called
`Child Protective Services’ hot line on April 28, 1999, and made allegations against
`Landeros regarding A.H. (ECF No. 284-1 at 56, 58.) However, Sheldon spoke with
`Hernandez, Donna, Landeros, Griego, and A.H., and he did not find evidence to
`substantiate Hernandez’s allegations against Landeros. (Id. at 57.) Sheldon admonished
`Hernandez “concerning his questioning of the child incessantly to the point where [she]
`was confused,” because he was concerned that Hernandez “was perhaps planting things
`in her mind.” (Id. at 60.)
`Finally, regarding not disputing the protective order Donna had against Hernandez,
`the defense called Paul Gaudet who testified that he represented Hernandez in that
`protective order case. (ECF No. 284-1 at 30–31.) Gaudet testified that he “thought that it
`was in everybody’s best interest to just go ahead and leave this protective order in place”
`and keep Hernandez and Donna away from each other because, “from a practical
`standpoint, [he] thought everyone involved was better served by not requesting a hearing
`in an attempt to validate any allegations that would be made.” (Id. at 34.)
`On rebuttal, the State played a videotape of a family court proceeding involving
`Hernandez and Donna from November 4, 1998. (ECF No. 257-3 at 25–26.)
`The jury found Hernandez guilty of burglary while in possession of a weapon, first-
`degree murder with the use of a deadly weapon, second-degree kidnapping, and unlawful
`penetration of a dead body. (ECF No. 257-2.)
`2.
`Penalty phase of the trial
`The State presented various witnesses to show the effect the murder had on A.H.
`First, Toby Griego, Jr. (“Toby”), Donna’s brother, testified that he currently lived with his
`parents and A.H. (ECF No. 258-2 at 18.) Toby testified that A.H. “doesn’t want to be
`alone” and “doesn’t want to be in the dark.” (Id. at 19.) Toby also testified that Donna’s
`murder had “just torn [his] life apart.” (Id. at 21.)
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`Second, Griego, Donna’s mother who had also testified at the guilt phase of the
`trial, testified that she was now raising A.H. (ECF No. 258-2 at 23.) Griego described
`A.H.’s current behavior as “withdraw,” explaining that A.H. “cried a lot[,] . . . wanted her
`mommy, especially at nighttime, and . . . won’t sleep alone.” (Id. at 31.) According to
`Griego, A.H. drew “pictures of houses without windows and doors” because “[s]he doesn’t
`want . . . anybody to come in and definitely doesn’t want her daddy to come in.” (Id. at
`32.) A.H. had also acted out the murder with Barbie dolls: “She would get sticks and try
`to stab the dolls. She tried to choke the doll, and she would shake the dolls.” (Id. at 33.)
`And third, Linda Cavazos, A.H.’s therapist, testified that at A.H.’s first appointment
`following the murder, A.H. “was extremely emotional, very tearful. She could not speak of
`her mother without crying, showing great emotion. She expressed great fearfulness. She
`was afraid of any closed room or area that had a door or window adjacent to it.” (ECF No.
`258-2 at 43.) At therapy, A.H. “would do stabbing motions on various parts of the doll’s
`body.” (Id. at 44.) Cavazos diagnosed A.H. with post-traumatic stress disorder. (Id. at 47.)
`Next, during Hernandez’s presentation of evidence, he called various witnesses to
`testify to his good character. Anibal Sabate, Hernandez’s employer at a restaurant,
`testified that she never had any problems with him and believed him to be an honest
`person. (ECF No. 258-3 at 11–12.) Rafael Hernandez, Hernandez’s brother, testified that
`Hernandez never got into any trouble in Mexico, and, after moving to the United States,
`he had not been in any trouble either. (Id. at 14, 18.) Rafael Meza testified that he and
`Hernandez had known each other since they were children in Mexico. (Id. at 20.)
`According to Meza, Hernandez had been employed the entire time he was in the United
`States, Hernandez was a “devoted father” who wanted A.H. to have “a better future,”
`Hernandez wanted to get back together with Donna, Hernandez’s family “were good,
`caring people,” and Hernandez had drinking problems, which caused him to act stupidly
`and then forget what he had done. (Id. at 22–23, 25–29.) Trillo, who testified during the
`guilt phase of the trial and was an coworker and family friend of Hernandez, testified that
`A.H. “looked happy all the time,” Hernandez would get A.H. whatever she needed,
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`Hernandez wanted to get back together with Donna, and Hernandez had told him that he
`and Donna “were having a good relationship again.” (Id. at 33–35.) Nellie, who also
`testified at the guilt phase of the trial, testified that “[t]here was a lot of love” between
`Hernandez and A.H., A.H. “loved her father to death,” Hernandez had been employee of
`the month at the casino where he worked, Hernandez wanted to get back together with
`Donna, and Hernandez was never in trouble with the law or disciplined at work. (Id. 258-
`3 at 37–44.) Lisa Souders, Hernandez’s coworker at the casino, testified that Hernandez
`was “[w]onderful,” “great,” “very helpful,” and “very loyal.” (Id. at 45–46, 48.) Armando
`Salas, another coworker of Hernandez from the casino, testified that Hernandez was
`“very kind” and “loved [his daughter] a lot.” (Id. at 52–53.) Alberta Flores, another
`coworker, testified that Hernandez “was living for his daughter.” (Id. at 56, 58.) And Frank
`Coco, another coworker, testified that Hernandez was a happy and nice guy and had
`offered to clean his carpets for free. (Id. at 59–61.)
`Hernandez allocated. (ECF No. 258-3 at 65–68.)
`The jury found the following aggravating circumstances during the penalty phase
`of the trial: (1) Hernandez subjected or attempted to subject the victim to non-consensual
`sexual penetration immediately before, during, or after the commission of the murder, (2)
`the murder was committed while Hernandez was engaged in the commission of or an
`attempt to commit a burglary, and (3) the murder involved the torture or mutilation of the
`victim. (ECF No. 258-6 at 11.) The jury then found the following mitigating circumstances:
`(1) Hernandez had no significant history of prior criminal activity, (2) the murder was
`committed while the defendant was under the influence of extreme mental or emotional
`disturbance, (3) the defendant had accepted responsibility for the crime, (4) the defendant
`had expressed remorse for the crime, (5) the defendant was intoxicated at the time of the
`crime, (6) the defendant had been gainfully employed throughout his adult life, and (7)
`Hernandez spared the life of A.H. even though he had threatened to kill her. (Id. at 12.)
`The jury then “found that the aggravating circumstance or circumstances outweigh any
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`mitigating circumstance or circumstances” and imposed a sentence of death. (ECF No.
`258-5 at 2.)
`Procedural Background
`B.
`Hernandez’s judgment of conviction was filed on September 28, 2000. (ECF No.
`53-3.) Hernandez appealed, and the Nevada Supreme Court affirmed the judgment of
`conviction on August 2, 2002. (ECF No. 1-2 at 12–43.) Hernandez filed a petition for writ
`of habeas corpus in state court on March 12, 2003. (ECF No. 117-5.) After holding an
`evidentiary hearing, the state court denied Hernandez’s petition. (ECF No. 14-2 at 42–
`50.) Hernandez appealed, and the Nevada Supreme Court affirmed the denial on October
`30, 2008. (ECF No. 14-2 at 51–79.) The Nevada Supreme Court denied rehearing. (ECF
`No. 117-9.) Remittitur issued on February 3, 2009. (ECF No. 53-9.)
`Hernandez initiated this federal habeas corpus action on September 18, 2009.
`(ECF No. 1.) The Court appointed counsel for Hernandez, and, with counsel, Hernandez
`filed a first-amended habeas petition on December 21, 2009. (ECF No. 13.) Respondents
`filed a motion to dismiss, arguing that several of the claims in the amended petition were
`not exhausted in state court. (ECF No. 52.) In response, Hernandez moved for leave to
`further amend his petition and for a stay to allow him to return to state court to exhaust
`his unexhausted claims. (ECF Nos. 59, 61.) On May 21, 2010, the Court granted
`Hernandez leave to file his second-amended petition and granted his motion for a stay.
`(ECF No. 71.) Hernandez filed his second amended habeas petition, and the action was
`stayed pending completion of Hernandez’s second state habeas action. (ECF No. 72.)
`In Hernandez’s second state habeas action, the state court denied relief on
`procedural grounds. (ECF No. 98.) Hernandez appealed, and the Nevada Supreme Court
`affirmed on September 24, 2014, ruling that Hernandez’s second state action was
`untimely, and that he did not show cause and prejudice to overcome the procedural bar.
`(ECF No. 98-7.) The Nevada Supreme Court denied rehearing on November 25, 2014.
`(ECF No. 98-9.)
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`The stay of this action was lifted on February 20, 2015. (ECF No. 94.) Hernandez
`filed a third-amended petition on June 22, 2015, and then a fourth-amended petition on
`March 6, 2017. (ECF Nos. 97, 147.) Respondents filed a motion to dismiss Hernandez’s
`fourth-amended petition on March 5, 2018. (ECF No. 161.) Respondents argued that
`several claims in the fourth-amended petition were barred, in whole or in part, by the
`procedural default doctrine. (Id.) Respondents also argued that ground 21 was not ripe
`for review, and that grounds 28 and 29 were without merit. (Id.) On February 4, 2019, the
`Court granted that motion to dismiss in part and denied it in part, dismissing ground 2
`except the ineffective assistance of trial counsel portion of that claim, ground 16 except
`the ineffective assistance of trial counsel portion of that claim, and grounds 7, 9, 10, 11,
`13g, 14, 15 and 19. (ECF No. 184.) Hernandez filed a motion for reconsideration, which
`the Court denied. (ECF No. 218.)
`On July 2, 2019, Hernandez filed a motion to amend, requesting leave to file a fifth-
`amended habeas petition to add three grounds—grounds 30, 31 and 32—to his petition.
`(ECF No. 204.) The Court granted the motion. (ECF No. 218.) Hernandez filed his instant
`Fifth-Amended Petition on October 11, 2019. (ECF No. 221.) On December 24, 2019,
`Respondents filed a motion to dismiss, arguing that these three new grounds should be
`dismissed. (ECF No. 224.) The Court granted the motion, in part, dismissing ground 32.
`(ECF No. 242.)
`Respondents filed their answer to the Fifth-Amended Petition, and Hernandez filed
`his reply. (ECF No. 285, 301.) Based on the United States Supreme Court decision in
`Shinn v. Ramirez3, the Court instructed the parties to file an amended answer and
`amended reply, respectively. (ECF No. 307.) Respondents filed their amended answer,
`Hernandez filed his amended reply, and Respondents filed their surreply. (ECF No. 317,
`322, 345.)
`///
`///
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`3596 U.S. 366 (2022).
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`Hernandez moved for leave to conduct discovery and for an evidentiary hearing.
`(ECF Nos. 324, 325.) Respondents responded to the motions. (ECF Nos. 340, 342.)
`Hernandez replied. (ECF Nos. 346, 347.)
`III.
`GOVERNING STANDARD OF REVIEW
`28 U.S.C. § 2254(d) sets forth the standard of review generally applicable in
`habeas corpus cases under the Antiterrorism and Effective Death Penalty Act (“AEDPA”):
`
`An application for a writ of habeas corpus on behalf of 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 —
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`(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
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`(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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` state court decision is contrary to clearly established Supreme Court precedent, within
`the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the
`governing law set forth in [the Supreme Court’s] 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)). A state court decision is an unreasonable application of clearly
`established Supreme Court precedent within the meaning of 28 U.S.C. § 2254(d) “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 75 (quoting Williams, 529 U.S. at 413). “The ‘unreasonable application’ clause requires
`the state court decision to be more than incorrect or erroneous. The state court’s
`application of clearly established law must be objectively unreasonable.” Id. (quoting
`Williams, 529 U.S. at 409–10) (internal citation omitted).
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`The Supreme Court has instructed that “[a] state court’s determination that a claim
`lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’
`on the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
`(2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court
`has stated “that even a strong case for relief does not mean the state court’s contrary
`conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); see also Cullen
`v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult to meet”
`and “highly deferential standard for evaluating state-court rulings, which demands that
`state-court decisions be given the benefit of the doubt”) (internal quotation marks and
`citations omitted).
`IV.
`DISCUSSION
`A.
`Ground 1: Ineffective Assistance of Counsel
`In ground 1, Hernandez alleges that his convictions and death sentence are invalid
`under federal constitutional guarantees of due process, equal protection, the effective
`assistance of counsel, a fair and impartial jury, and a reliable sentence, because trial
`counsel were ineffective. (ECF No. 221 at 33.)
`Importantly, as is discussed further in the motion for evidentiary hearing section of
`this Order, infra, the Court does not consider any evidence beyond Hernandez’s first state
`postconviction record4 with regard to grounds 1 and 2 because Hernandez cannot satisfy
`the stringent requirements of § 2254(e)(2). See Shinn v. R