Orlando Hernandez v. Florida Department of Corrections

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________

No. 24-13844

Non-Argument Calendar ____________________

ORLANDO HERNANDEZ,

Petitioner-Appellant, versus

FLORIDA DEPARTMENT OF CORRECTIONS,

Secretary Florida Department of Corrections, Respondent-Appellee.

____________________

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:22-cv-23691-DPG ____________________

Before JORDAN, LUCK, and KIDD, Circuit Judges.

P ER CURIAM:

Orlando Hernandez is a Florida prisoner serving a forty-year sentence for attempted premeditated murder, aggravated battery

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2 Opinion of the Court 24-13844 with a deadly weapon, and aggravated assault. He appeals the dis- trict court's denial of his 28 U.S.C. section 2254 habeas petition. The district court issued a certificate of appealability on three re- lated issues concerning ineffective assistance of his trial counsel that Hernandez raised for the first time in his habeas petition. The first issue is whether a prisoner's failure to raise a claim in state court constitutes a per se lack of diligence in developing the claim under 28 U.S.C. section 2254(e)(2). The second is whether Hernan- dez's generic request for an evidentiary hearing on an issue unre- lated to the claim on appeal here was enough to show he was dili- gent in state court. And the third is whether the existing state court record was enough to show Hernandez was entitled to relief. We answer no to the second and third questions. Because the answers to those two questions are dispositive, we affirm the district court's denial of Hernandez's habeas petition.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

State court proceedings In 2014, the state charged Hernandez with eight offenses, in- cluding attempted premeditated murder, aggravated battery with a deadly weapon, and aggravated assault. Before jury selection, the judge asked if there had been any discussion about resolving the case. The state said it had made a plea offer of 12 years' imprison- ment.¹Hernandez said that he had previously told the state that

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24-13844 Opinion of the Court 3 he would plead guilty if his sentence was three or four years' im- prisonment, but the state said it would never accept an offer like that. While he was considering whether to accept the state's plea offer, Hernandez's counsel advised him that if he were convicted at trial, he faced a mandatory minimum sentence of twenty years' imprisonment. Hernandez decided to proceed to trial. At trial, the state presented evidence that three men had gone into a body shop to pick up some speakers. As one of the men was returning to his car, Hernandez's codefendant approached the man holding a gun and told him, "[g]et ready, you're going to die."

Hernandez then approached the man and forced him into the car while pointing a gun at his head. Hernandez pulled the trigger three times, but the gun misfired. A struggle broke out and Her- nandez hit the man in the mouth with the gun and pulled the trig- ger for a fourth time. This time, the gun fired, but didn't hit the man and Hernandez began to flee toward another car while con- tinuing to fire. Hernandez and his codefendant entered that car and drove away.

Just after, the two other men the victim had traveled with exited the body shop, returned to the car, and drove off in pursuit of Hernandez and his codefendant. The men followed the fleeing car, called the police, and told the police the fleeing car's license plate number. The police then arrested Hernandez and his code- fendant, and the men were able to identify them. In addition to accurate. But whether the offer was for 10 or 12 years does not affect our analysis of the issue.

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4 Opinion of the Court 24-13844 this eyewitness testimony, the state was able to show the jury sur- veillance footage of the incident. Hernandez's closing argument did not deny that the attack happened but instead argued that the men had misidentified him as the attacker.

The jury convicted Hernandez of attempted premeditated murder, aggravated battery with a deadly weapon, and aggravated assault. He was sentenced to forty years' imprisonment, with a

"stacked" thirty-three-year mandatory minimum—twenty years for the attempted murder, plus ten years for the aggravated bat- tery, plus three for the aggravated assault, running consecutively.² He appealed, raising Brady v. Maryland, 373 U.S. 83 (1963), and other discovery issues, and the state appellate court affirmed. Hernandez v. State, 229 So. 3d 1236 (Fla. Dist. Ct. App. 2016). He filed a post-conviction motion in state court under Florida Rule of Criminal Procedure 3.850, again raising the Brady issue and seeking an evidentiary hearing "that would tend to establish a prejudicial Brady violation." The motion never argued that Hernandez's trial

2 At the time he was sentenced, Florida required a defendant in Hernandez's position to be sentenced to consecutive "stacked" mandatory minimums. See Hernandez v. State, 278 So. 3d 345, 346 (Fla. Dist. Ct. App. 2019). But before briefing in his direct appeal, the Florida Supreme Court "abrogated any com- pulsory requirement to impose consecutive minimum mandatory sentences, under these circumstances." Id.; see Williams v. State, 186 So. 3d 989, 993 (Fla.

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24-13844 Opinion of the Court 5 counsel was ineffective for failing to advise him of the correct man- datory minimum sentence. The trial court denied both the request for an evidentiary hearing and the motion, and that decision was affirmed on appeal.

Federal habeas petition

Hernandez then brought a habeas petition under 28 U.S.C. section 2254 in the District Court for the Southern District of Flor- ida, raising five issues, only one of which is relevant to this appeal. Hernandez alleged that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), because trial counsel failed to apprise him of the correct mandatory minimum sentence. But for his counsel's error, Hernandez argued, he would have ac- cepted the state's favorable plea offer. Hernandez acknowledged that because he was raising this claim for the first time in his federal habeas petition, normally it would be procedurally barred. But, Hernandez argued, the exception in Martinez v. Ryan, 566 U.S. 1 (2012), should apply. That exception is available so long as a state effectively requires a trial-level ineffective assistance of counsel claim to be raised for the first time in a collateral proceeding. Tre- vino v. Thaler, 569 U.S. 413, 428 (2013). Under the Martinez excep- tion, a claim is not procedurally barred when brought for the first time in a federal habeas petition if post-conviction counsel was con- stitutionally ineffective by not raising a substantial trial-level inef- fective assistance of counsel claim.

Hernandez contended that his post-conviction counsel had also been constitutionally ineffective for failing to raise his trial

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6 Opinion of the Court 24-13844 counsel's ineffectiveness. According to Hernandez, his post-con- viction counsel "knew that [he] was informed" of the wrong man- datory minimum sentence, "knew [he] had the desire to resolve his case," and knew that he "would have accepted the plea" if he had been told the actual mandatory minimum sentence. He argued that, although "[t]he pertinent facts of this case are not fully devel- oped in the record," he was not at fault for this because he had sought an evidentiary hearing in his state post-conviction motion raising the Brady issue, and that "[t]he record also does not refute or undermine" his allegations. So, he argued that he was entitled to an evidentiary hearing in federal court.

The district court denied the claim. The district court first found that the Martinez exception applied. Hernandez, the district court explained, had adequately alleged that his post-conviction counsel was inadequate for failing to raise an ineffective assistance of counsel claim in his state post-conviction motion. And Hernan- dez's claim was substantial because advising a defendant about the advantages and disadvantages of a plea agreement is one of coun- sel's critical obligations. In addition, there was at least some evi- dence in the record that supported the contention that Hernandez had been misadvised.

Nevertheless, the district court found that the evidence was insufficient to conclude that Hernandez was entitled to relief on the merits. The record contained no testimony from Hernandez's counsel about what he had advised Hernandez with respect to the plea bargain. And while Hernandez's petition alleged that he

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24-13844 Opinion of the Court 7 would have accepted the plea offer, Hernandez had not testified to that fact.

The district court next ruled that Hernandez was not enti- tled to an evidentiary hearing to develop his claim. Even though Hernandez had met the bar to excuse his procedural default under Martinez, this did not demonstrate that he was entitled to an evi- dentiary hearing. To be entitled to an evidentiary hearing, the dis- trict court explained, a petitioner who has failed to develop the fac- tual basis for his claim must be able to satisfy 28 U.S.C. section 2254(e)(2). And under section 2254(e)(2), a claim must either rely on a "new rule of constitutional law" that applies retroactively or

"a factual predicate that could not have been previously discovered through the exercise of due diligence." Id. § 2254(e)(2)(A)(i)-(ii). No new constitutional law applied, so Hernandez had to have shown he was diligent. Hernandez could not do that, the district court explained, because the Supreme Court in Shinn v. Ramirez,

596 U.S. 366 (2022), had held that "a state prisoner is responsible for counsel's negligent failure to develop the state postconviction record." Id. at 383. Since Hernandez had never requested an evi- dentiary hearing on his ineffective-assistance of counsel claim in state court, and since his post-conviction counsel's negligence was charged to him, the district court denied the ineffective-assistance- of-counsel claim on the merits.

STANDARD OF REVIEW

Our review of a habeas petition is limited to the issues spec- ified in the certificate of appealability. See Ferguson v. Comm'r, Ala.

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8 Opinion of the Court 24-13844 Dep't of Corr., 69 F.4th 1243, 1259 n.12 (11th Cir. 2023). "We review de novo issues of law presented in a certificate of appealability."

Hamilton v. Sec'y, Fla. Dep't of Corr., 793 F.3d 1261, 1264 (11th Cir. 2015) (citation modified). We review for clear error the district court's factual findings. Ward v. Hall, 592 F.3d 1144, 1155, 1160 (11th Cir. 2010).

"An ineffective assistance of counsel claim is a mixed ques- tion of law and fact subject to de novo review." Carey v. Dep't of Corr., 57 F.4th 985, 989 (11th Cir. 2023) (citation modified). "We review de novo the determination of a district court that a habeas petitioner is procedurally barred from raising a claim in federal court." Id. (citation modified). We review for abuse of discretion a district court's denial of an evidentiary hearing. Chavez v. Sec'y Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011).

DISCUSSION

The district court issued a certificate of appealability on three issues related to Hernandez's ineffective assistance of trial counsel claim:

1. Whether a prisoner's (or his attorney's) failure to raise a claim in state court per se constitutes a lack of diligence in developing the factual basis of that claim under § 2254(e)(2)? Shinn held that even if a defaulted claim satisfies Martinez, § 2254(e)(2) typically bars an evidentiary hearing on the claim because a prisoner is

"at fault" for his attorney's negligent failure to de- velop its factual basis in state court. 596 U.S. at 384. But Shinn left open whether a prisoner might be able

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24-13844 Opinion of the Court 9 to demonstrate diligence in developing the factual ba- sis of a claim he failed to raise in state court.

2. If the failure to raise a claim in state court does not per se bar a claim of diligence, is [Hernandez]'s allega- tion that he "requested an evidentiary hearing in the state court" sufficient to show diligence?

3. Assuming [Hernandez] has not shown diligence and cannot obtain an evidentiary hearing, is the exist- ing state-court record sufficient to grant relief on [his] first ground?

Our discussion will proceed in two parts. First, we'll address whether Hernandez has satisfied the requirements on the Martinez exception, and second, we'll consider the questions that the district court posed in its certificate of appealability. Procedural bar

As an initial matter, we agree with the district court that Hernandez's ineffective assistance of counsel claim was not proce- durally barred under Martinez. See 566 U.S. at 17. Section 2254

"requires state prisoners to 'exhaus[t] the remedies available in the courts of the [s]tate' before seeking federal habeas relief." Shinn,

596 U.S. at 377 (quoting 28 U.S.C. § 2254(b)(1)(A)). Normally, a prisoner accomplishes this by raising the issue in state court. Id. at

378. Under the doctrine of procedural default, however, "federal courts generally decline to hear any federal claim that was not pre-

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10 Opinion of the Court 24-13844 sented to the state courts 'consistent with [the State's] own proce- dural rules.'" Id. (quoting Edwards v. Carpenter, 529 U.S. 446, 453

(2000)).

Hernandez never raised his ineffective assistance of counsel claim in state court, so habeas review would normally be barred. But the Supreme Court in Martinez recognized an exception where

"a procedural default will not bar a federal habeas court from hear- ing a substantial claim of ineffective assistance at trial if, in the ini- tial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." 566 U.S. at 17. This "'narrow exception' applies if the [s]tate's judicial system effectively fore- closes direct review of trial-ineffective-assistance claims." Shinn,

596 U.S. at 380 (quoting Trevino, 569 U.S. at 428). Florida generally requires that an ineffective-assistance-of-counsel claim be brought on collateral review. See Sullivan v. Sec'y, Fla. Dep't of Corr., 837 F.3d 1195, 1199 (11th Cir. 2016); Claudio-Martinez v. State, 324 So. 3d 45, 47 n.1 (Fla. Dist. Ct. App. 2021).

The district court found, and the state does not dispute on appeal, that Hernandez's ineffective-assistance-of-counsel claim satisfied Martinez's narrow exception. Under Martinez, procedural default can be excused when it is "caused by post-conviction coun- sel's unconstitutionally ineffective assistance . . . and the procedur- ally defaulted claim has at least 'some merit.'" Sullivan, 837 F.3d at 1201 (quoting Martinez, 566 U.S. at 14). Like the district court, we agree that Hernandez adequately alleged that his post-conviction

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24-13844 Opinion of the Court 11 counsel was constitutionally ineffective for not raising his trial-level ineffective assistance of counsel claim.

Whether a claim has "some merit" is evaluated under the same standard that governs certificates of appealability—whether reasonable jurists could debate the merits of the claim. See Miller- El v. Cockrell, 537 U.S. 322, 327 (2003). The Martinez exception bor- rows the substantive standard set forth in Strickland to determine when post-conviction counsel has been ineffective. Martinez, 566 U.S. at 14. So, in order to determine whether Hernandez's claim has "some merit," we need to look to the substance of his claim.

"Under the Strickland test, for a convicted defendant to show that he received constitutionally ineffective assistance of counsel, he must show that (1) his attorney's performance was deficient, and

(2) the deficient performance prejudiced the defense." Pooler v. Sec'y, Fla. Dep't of Corr., 702 F.3d 1252, 1269 (11th Cir. 2012) (cita- tion modified).

The first prong—whether an attorney's performance was deficient—is judged under an objective standard, namely

"whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. (quoting Strickland, 466 U.S. at 690). Under Strick- land, a "critical obligation of counsel is to advise the client of 'the advantages and disadvantages of a plea agreement.'" Padilla v. Ken- tucky, 559 U.S. 356, 370 (2010) (quoting Libretti v. United States, 516 U.S. 29, 50-51 (1995)). And counsel's conduct is deficient when he

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12 Opinion of the Court 24-13844 fails to "communicate [the defendant's] potential total sentence."

Carmichael v. United States, 966 F.3d 1250, 1258 (11th Cir. 2020). As to Strickland's second prong, "[i]n the plea-negotiation context, the prejudice requirement focuses on whether counsel's unconstitutionally ineffective performance adversely affected the outcome of the plea process." Id. at 1258-59 (11th Cir. 2020) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). To show counsel's conduct affected the outcome, a petition must show a reasonable probabil- ity that (1) "the defendant would have accepted the plea"; (2) "the prosecution would not have withdrawn it"; (3) "the court would have accepted its terms"; and (4) the sentence in the accepted plea was less severe than the sentence the defendant ultimately re- ceived. Id. at 1259 (citing Lafler v. Cooper, 566 U.S. 156, 164 (2012)); see also Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013). Here, Hernandez alleged that his trial counsel told him that he faced a mandatory minimum of 20 years' imprisonment. How- ever, at the time of the plea offer, Florida required that the manda- tory minimums Hernandez faced had to be "stacked." That means that Hernandez actually faced a mandatory minimum of 33 years' imprisonment at the time of trial. He alleged that if he knew he faced the more substantial penalty, he would have accepted the plea agreement (and that the prosecution would not have with- drawn it and the court would have accepted its terms).

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24-13844 Opinion of the Court 13 Reasonable jurists could debate whether this claim has merit. See Miller-El, 537 U.S. at 327 (2003). So, Hernandez has sat- isfied both of Martinez's requirements and he overcame the proce- dural default.

Questions in the certificate of appealability As to the questions in the certificate of appealability, we'll start with the third question: "is the existing state-court record suf- ficient" to entitle Hernandez to relief? A habeas petitioner must

"prove his right to relief by a preponderance of the evidence." Al- vord v. Wainwright, 731 F.2d 1486, 1488 (11th Cir. 1984). But while Hernandez has alleged he is entitled to relief, he lacks evidentiary support for his claims. Without testimony from Hernandez's trial counsel about what he advised regarding the mandatory minimum sentence, and without testimony or other evidence from Hernan- dez about whether he'd accept the plea offer, Hernandez cannot prove his claim. It is thus not surprising that on appeal Hernandez concedes that "the existing record is not sufficient to grant relief."

The record is missing, Hernandez agrees, "testimony from [him] that he would have accepted the favorable offer" if his counsel had properly advised him of the mandatory minimum he faced. So, in order to be entitled to relief, Hernandez would first need an evidentiary hearing to develop this missing evidence. De- termining whether Hernandez is entitled to an evidentiary hearing is the subject of the certificate of appealability's first two questions. The first question asks whether a petitioner lacks diligence per se

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14 Opinion of the Court 24-13844 when he fails to raise an issue in state court, and the second ques- tion asks whether Hernandez's request for an evidentiary hearing on a Brady issue in state court is enough to satisfy the diligence re- quirement for his ineffective assistance of counsel claim. Because it is only necessary to answer the second question to resolve this appeal, that's what we'll do. Hernandez did not do enough in state court to satisfy the diligence requirement for an evidentiary hear- ing. See 28 U.S.C. § 2254(e)(2).

Hernandez contends that because his procedural default was excused, because the existing state court record is insufficient to evaluate his ineffective assistance of counsel claim, and because he asked for an evidentiary hearing on his Brady claim in state court, he should be entitled to an evidentiary hearing to develop his claim. He's right that a federal habeas court may grant the petitioner an evidentiary hearing if the petition alleged sufficient facts that, if proven, would entitle him to habeas relief. Jones v. Sec'y, Fla. Dep't of Corr., 834 F.3d 1299, 1319 (11th Cir. 2016).

But "[s]ection 2254(e)(2) provides that, if a prisoner 'has failed to develop the factual basis of a claim in [s]tate court proceed- ings,' a federal court may hold 'an evidentiary hearing on the claim' in only two limited scenarios." Shinn, 596 U.S. at 381 (quoting 28 U.S.C. § 2254(e)(2)). "Either the claim must rely on (1) a 'new' and 'previously unavailable' 'rule of constitutional law' made retroac- tively applicable by [the Supreme] Court, or (2) 'a factual predicate

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24-13844 Opinion of the Court 15 that could not have been previously discovered through the exer- cise of due diligence.'" Id. (quoting 28 U.S.C. §§ 2254(e)(2)(A)(i), (ii)).

Section 2254(e)(2) applies when, as here, a petitioner has

"failed to develop the factual basis of a claim." See 28 U.S.C. § 2254(e)(2). In order for us to say a petitioner failed to develop the factual basis for a claim, the petitioner "must be 'at fault' for the undeveloped record in state court." Shinn, 596 U.S. at 382 (quoting Williams v. Taylor, 529 U.S. 420, 432 (2000)). "A prisoner is 'at fault' if he 'bears responsibility for the failure' to develop the record." Id. at 382 (quoting Williams, 529 U.S. at 432). And because there is no right to post-conviction counsel, a prisoner is at fault "for all attor- ney errors during those proceedings." See id. at 383 (citing Wil- liams, 529 U.S. at 432).

Thus, "under [section] 2254(e)(2)," Hernandez "is 'at fault' even when [his] state postconviction counsel [wa]s negligent." Id. at 384. That means Hernandez's "claim must rely on (1) a 'new' and 'previously unavailable' 'rule of constitutional law' made ret- roactively applicable by [the Supreme] Court, or (2) 'a factual pred- icate that could not have been previously discovered through the exercise of due diligence.'" Id. at 381 (quoting 28 U.S.C. § 2254(e)(2)(i), (ii)). Here, there is no new rule of constitutional law that applies, so Hernandez must show that the basis of his claim could not have been discovered through diligence.

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16 Opinion of the Court 24-13844 He cannot. Even though Hernandez's post-conviction counsel's alleged ineffectiveness could be used to excuse proce- dural default, it cannot be used to excuse lack of diligence as it re- lates to the requirements to be entitled to an evidentiary hearing. A prisoner's diligence "depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court." Williams, 529 U.S. at 435. And, "[d]iligence will require in the usual case that the prisoner, at a minimum, seek an evidentiary hearing in state court in the manner prescribed by state law." Id. at 437. Hernandez never made an attempt to investigate and pursue a claim that his trial counsel was ineffective for failing to advise him about the correct mandatory minimum sentence. He concedes in his opening brief that he "raised this claim for the first time in his 2254 petition." But all of the evidence necessary for Hernandez to make his claim has been available from the moment his attorney allegedly misadvised him of the sentence he faced. The advice he was given was wrong at the moment it was given. See Williams,

186 So. 3d at 990. Unable to point to any effort to develop the record on this issue in state court, Hernandez counters that his request for an ev- identiary hearing on his state post-conviction Brady claim demon- strates his diligence. But this argument is inconsistent with the text of section 2254(e)(2). Section 2254(e)(2) requires that the petitioner show that "the claim relies on a factual predicate that could not have been previously discovered through the exercise of due diligence."

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28 U.S.C. § 2254(e)(2)(A) (emphasis added). An evidentiary hearing on an unrelated Brady claim would not produce evidence related to Hernandez's ineffective assistance of counsel claim. So, when the trial court denied Hernandez's motion, it was not the court that stood between Hernandez and developing his claim—it was his own failure to investigate and pursue the claim. Pope v. Sec'y for Dep't of Corr., 680 F.3d 1271 (11th Cir. 2012), shows how the diligence requirement in section 2254(e)(2) is claim- specific. In Pope, the petitioner requested and received an eviden- tiary hearing as to some of his claims of error in his state post-con- viction proceeding. Id. at 1279. On appeal, we examined the peti- tioner's claims one-by-one to determine whether he "requested an evidentiary hearing on these claims at every appropriate stage of the state court collateral proceeding." Id. at 1289 (emphasis added). In addition, we separately verified that the petitioner's allegations for two different types of penalty-phase ineffective assistance of coun- sel claims were sufficient.

Rodney v. Garrett, 116 F.4th 947 (9th Cir. 2024), is not to the contrary. There, after the petitioner's direct appeal was denied by the state supreme court, he filed a post-conviction motion in the state trial court, requesting the appointment of post-conviction counsel because "counsel was necessary to proceed with discovery and investigation." Id. at 953, 956. The trial court denied him post- conviction relief without appointing counsel or holding an eviden- tiary hearing. Id. at 953. Rodney, a prisoner proceeding pro se, filed

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18 Opinion of the Court 24-13844 a federal habeas petition claiming that his trial counsel was ineffec- tive in failing to challenge the state's medical evidence and failing to obtain the victim's medical records, but the district court denied it, finding that it could "consider only evidence in the state-court record in evaluating the substantiality of Rodney's" ineffective as- sistance. Id. at 957.

This was error, the Ninth Circuit explained, because "Rod- ney requested the appointment of post-conviction counsel during his initial-review collateral proceeding and specifically argued that counsel was necessary to proceed with discovery and investiga- tion." Id. at 956. Because Rodney's ineffective assistance claim

"hinge[d]" on his trial counsel's failure to obtain the medical rec- ords, his request for "appointment of counsel and argu[ment] that counsel was necessary for purposes of investigation and discovery"

accomplished "all that he could to develop the evidentiary basis" of his ineffective assistance claim. Id. at 956-57. After all, "[a]n indi- gent prisoner who is denied counsel and discovery has no practical likelihood of obtaining a victim's medical records or procuring ex- pert testimony." Id. at 957. Rodney, therefore, "did not fail to de- velop the state-court record within the meaning of [section] 2254(e)(2)." Id.

Here, Hernandez was represented by private counsel, and the ineffective assistance of counsel claim he raises in his habeas petition in no way "hinge[s]" on the Brady claim for which he sought an evidentiary hearing in his state post-conviction proceed-

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24-13844 Opinion of the Court 19 ings. Id. And unlike Rodney, Hernandez did not need medical rec- ords or expert testimony—all he had to do was tell the state court what mandatory minimum sentence his lawyer told him he faced. Unlike the prisoner in Rodney, we cannot say that Hernandez had done "all that he could to develop the evidentiary basis" of his claims. Id. That's why the district court did not clearly err in find- ing that Hernandez was not entitled to an evidentiary hearing on this matter because of his lack of diligence.

CONCLUSION

Answering the only necessary questions on appeal, we agree with the district court that the state-court record was insufficient to afford Hernandez relief, and his request for an evidentiary hear- ing on his Brady claim was not enough to satisfy section 2254(e)(2)'s diligence requirement for his ineffective-assistance claim. So, we affirm the district court's denial of Hernandez's habeas petition.

AFFIRMED.

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