JON LOGAN KENNISON v. WARDEN JEREMY BEAN AND THE STATE OF NEVADA (2026)

ORDER OF AFFIRMANCE

Jon Logan Kennison appeals from a district court order denying a postconviction petition for a writ of habeas corpus filed on August 27, 2024, and a supplemental petition filed on September 10, 2024. Eighth Judicial District Court, Clark County; Carli Lynn Kierny, Judge.

Kennison argues the district court erred by denying his claims that counsel was ineffective. To demonstrate ineffective assistance of counsel sufficient to invalidate a judgment of conviction based on a guilty plea, a petitioner must show counsel's performance was deficient in that it fell below an objective standard of reasonableness and prejudice resulted in that, but for counsel's errors, there is a reasonable probability petitioner would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Kirksey v. State, 112 Nev. 980, 987-88, 923 P.2d 1102, 1107 (1996). Both components of the inquiry must be shown. Strickland v. Washington, 466 U.S. 668, 687 (1984). 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). To warrant an evidentiary hearing, a petitioner must raise claims supported by specific factual allegations that are not belied by the record and, if true, would entitle the petitioner to relief. Hargrove v. State, 100 Nev. 498, 502-03, 686 P.2d 222, 225 (1984).

First, Kennison argued counsel was ineffective for failing to discuss the written plea agreement. Kennison affirmed in the written guilty plea agreement that he and counsel had discussed the guilty plea agreement, and Kennison failed to allege in his petition what portion of the plea agreement counsel failed to discuss with him. Thus, he failed to support this claim with specific factual allegations that are not belied by the record and, if true, would entitle him to relief. Therefore, we conclude the district court did not err by denying this claim without first conducting an evidentiary hearing.

Second, Kennison argued counsel was ineffective for failing to understand that Kennison maintained his innocence and wanted a second opinion on the pathology report. Kennison claimed he told counsel he had reservations about pleading guilty and always maintained that a weapon was not used. Kennison stated in his petition that counsel told him a witness would testify she saw Kennison use a bat to hit the victim and later she saw Kennison come back from the garage where the victim was with a bloody gun. Further, Kennison alleged in his petition that counsel told him the cause of death was homicide by blunt force trauma and that Kennison asked counsel for a second opinion regarding the cause of death but admitted the victim would have had blunt force trauma from hitting or being hit with household objects during their struggle. The statements made by counsel were candid advice about the likely outcome at trial and do not demonstrate deficient performance. Cf. Dezzani v. Kern & Assocs., Ltd., 134 Nev. 61, 69, 412 P.3d 56, 62 (2018) (noting that one of the roles of an attorney is to provide candid advice to his or her client). Further, given Kennison's statement in the petition that the victim likely suffered blunt force trauma from the struggle, he failed to demonstrate a second opinion regarding the cause of death would have been helpful. Finally, Kennison failed to allege he would not have pleaded guilty and would have insisted on going to trial had counsel further discussed Kennison's reservations or sought a second opinion regarding the cause of death. Therefore, we conclude the district court did not err by denying this claim without first conducting an evidentiary hearing.

Third, Kennison argued in his supplemental petition that counsel was ineffective for failing to seek the same plea deal that his codefendant received. He claimed the fact that he did not receive the same plea deal was a violation of his equal protection rights. “The Equal Protection Clause of the Fourteenth Amendment mandates that all persons similarly situated receive like treatment under the law.” Gaines v. State, 116 Nev. 359, 371, 998 P.2d 166, 173 (2000). “The threshold question in equal protection analysis is whether a statute effectuates dissimilar treatment of similarly situated persons.” Rico v. Rodriguez, 121 Nev. 695, 703, 120 P.3d 812, 817 (2005).

Kennison failed to demonstrate counsel was deficient because he failed to allege specific facts not belied by the record that, if true, would entitle him to relief. He failed to allege that he and his codefendant were similarly situated, that the State was required to offer the same plea deal to all defendants, or that the State would be willing to offer the same plea deal to him. Further, he failed to allege that there was a reasonable probability he would not have pleaded guilty and would have insisted on going to trial had counsel sought this plea deal. Therefore, we conclude the district court did not err by denying this claim without first conducting an evidentiary hearing.

Kennison also raises several claims that were either not raised below or were raised in a reply brief that Kennison did not receive permission to file: (1) his sentence amounts to cruel and unusual punishment; (2) the district court failed to make specific findings regarding the deadly weapon enhancement; and (3) counsel should have sought to suppress the witness's statements regarding his using a bat and having a gun and should have sought to suppress the pathologist ’s report. As these claims were either not raised below or were not considered by the district court because they were improperly raised in a reply brief Kennison did not have permission to file, we decline to consider them in the first instance on appeal. See State v. Wade, 105 Nev. 206, 209 n.3, 772 P.2d 1291, 1293 n.3 (1989) (declining to consider claims raised for the first time on appeal); see also NRS 34.750(5) (stating that “[n]o further pleadings may be filed except as ordered by the court”); Barnhart v. State, 122 Nev. 301, 303, 130 P.3d 650, 651-52 (2006) (providing that the district court may exercise its discretion to permit a petitioner to assert claims not previously pleaded upon a showing of good cause). Accordingly, we

ORDER the judgment of the district court AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.