Federal Criminal Defense
Habeas Corpus, Trials, and Appeals
Before opening his law office in 2006, Mr. Hermansen had dedicated five years to helping his clients and honing his skills as a Trial Attorney at the nationally renowned Federal Defenders of San Diego, Inc., five years as a research attorney for the federal court, and two years for the state court. As a federal public defender, Mr. Hermansen represented hundreds of clients in federal court from initial court appearance, through trial, and on appeal against felony criminal charges involving mostly border related crimes such as drug smuggling, people smuggling and illegal entry after deportation. He also represented clients accused of aggravated assault, bank robbery, and complex matters involving wiretaps and charges of fraud, money laundering and conspiracy. Besides handling his heavy caseload of trials and appeals, Mr. Hermansen also helped train new trial attorneys and supervised them during trials and motion hearings.
Mr. Hermansen has almost two decades of active felony appellate and trial experience. That experience has mostly involved federal felony cases. As a result, in addition to his misdemeanor and immigration trial experience, Mr. Hermansen has tried more than 40 felony cases. Of those 40+ felony jury trials, most were in federal court, and a substantial number ended with full acquittals, reduced exposure, or hung juries. Of the trials ending in conviction, Mr. Hermansen appealed, and many of those appeals (both published and unpublished) resulted in reversing the convictions. (Of course, each case is unique; so, prior results don't predict future success.)
Mr. Hermansen attended Loyola Law School where he served on the Law Review as the Chief Note and Comment Editor, and authored a published law review comment denouncing the military’s anti-gay exclusionary policy. While attending law school, Mr. Hermansen also summer clerked for a civil law firm in Los Angeles and for the American Civil Liberties Union. In addition, he was active in the National Lawyers Guild and Lawyers for Human Rights.
After graduating from Loyola Law School in 1993, Mr. Hermansen garnered valuable experience as a criminal research attorney for the San Diego Superior Court. He then expanded his knowledge of criminal law and procedure as a staff attorney handling hundreds of habeas corpus matters for the United States District Court for the Southern District of California. While at the district court, Mr. Hermansen was instrumental in helping the judges implement an efficient system for handling the large volume of habeas petitions to ensure that meritorious petitions got the time, attention and careful consideration they deserve. Not many attorneys can say they have five years of habeas corpus experience, but Mr. Hermansen can. And, he can put his extensive habeas, trial, and appellate experience to work for his clients.
LAW OFFICE OF KURT DAVID HERMANSEN
Trial, Habeas, & Appellate Attorney
(Dec. 2005 to June 6, 2019)
Focused law practice on state and federal trials, appeals, and habeas corpus. Board Certified Criminal Law Specialist, California State Bar Board of Legal Specialization, since 2009. Recognized as a Super Lawyer in San Diego every year from 2008 to the present, and as one of the Top 50 attorneys overall in San Diego 2017–19. Represented clients at state and federal felony jury trials. Argued frequently before the United States Court of Appeals for the Ninth Circuit and the California Courts of Appeal. Also argued before an 11-member en banc Ninth Circuit panel, the California Supreme Court, and the United States Supreme Court.
CALIFORNIA WESTERN SCHOOL OF LAW
Adjunct Professor (LL.M. in Trial Advocacy Program)
(2009 to 2016)
Prepared LL.M. candidates for federal trial practice by training them on everything from writing and arguing motions to conducting mock trials. The LL.M. program combined classroom instruction on substantive federal law, trial skills training, and client representation in a federal defender or Criminal Justice Act attorney’s office. Taught both the Trial Skills and Motion Practice courses.
FEDERAL DEFENDERS OF SAN DIEGO, INC.
(Dec. 2000 to Dec. 2005)
Represented clients in federal court from initial court appearance through trial in the United States District Court for the Southern District of California, and on appeal in the United States Court of Appeals for the Ninth Circuit, against felony charges involving mostly border-related crimes such as drug smuggling, people smuggling, and illegal entry after deportation. Also represented clients charged with bank robbery, aggravated assault, narcotics distribution, firearms offenses, multi-defendant conspiracies, and fraud. Trained new trial attorneys and supervised them at trials, motion hearings, and new arraignments. Served on all-attorney-training and intern committees.
UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF CALIFORNIA
Staff Attorney (Pro Se Law Clerk)
(June 1995 to Dec. 2000)
Provided judges and law clerks with advice on habeas corpus law and procedure; assisted chambers in managing over two hundred non-capital habeas corpus cases annually, from initial screening through final disposition; researched law; reviewed pleadings and transcripts; drafted orders for district judges and magistrate judges; advised judges during evidentiary hearings; maintained outline on habeas corpus law and procedure; and supervised pro se writ clerk.
SAN DIEGO SUPERIOR COURT
(August 1993 to June 1995)
Drafted bench memoranda for criminal law and motion judges, criminal presiding judge, criminal writs panel judges, and small claims appeals judges. Advised civil presiding judge on all civil forfeiture cases.
LOYOLA LAW SCHOOL, LOS ANGELES, CA,
J.D. June 6, 1993
UNIVERSITY OF CALIFORNIA, LOS ANGELES (UCLA)
B.A. Political Science with specialization in International Relations 1988.
Dean’s List. Includes study at University of Florence, Italy.
California State Bar No. 166349 (Dec. 6, 1993).
United States Supreme Court (Oct. 11, 2000)
U.S. Court of Appeals for the Ninth Circuit (May 1, 2001)
U.S. District Court for the Southern District of California (Dec. 10, 1993)
U.S. District Court for the Central District of California (July 13, 2006)
U.S. District Court for the Eastern District of California (June 10, 2013)
U.S. District Court for the Northern District of California (May 5, 2014)
Certified Specialist, Criminal Law, California State Bar Board of Legal Specialization (Mar. 1, 2009 to Present)
SUPER LAWYER in Criminal Law in San Diego every year 2008 to 2019. In 2017, 2018, and 2019, Mr. Hermansen was one of only three or four criminal defense attorneys to be included in the Top 50 lawyers overall in San Diego. Super Lawyers rates outstanding lawyers who have attained a high degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations.
2018 APPELLATE ATTORNEY OF THE YEAR AWARD San Diego Criminal Defense Bar Association (March 27, 2018).
E. STANLEY CONANT AWARD for benefiting the San Diego legal community and demonstrating exceptional and unselfish devotion to protecting the rights of the indigent accused, presented by the Board of Directors of Federal Defenders of San Diego, Inc., and Appellate Defenders, Inc. (April 2016).
OUTSTANDING SERVICE AWARD for dedication and service to the association and the community, presented by the Tom Homann LGBT Law Association (May 1999 & May 2001).
THE BNA LAW STUDENT AWARD recognizing the most satisfactory scholastic progress in the field of law during the final school year by a member of the class of 1993, presented by the Bureau of National Affairs, Inc., and Loyola Law School (June 1993).
San Diego Criminal Defense Lawyers Club (Secretary 2019).
Criminal Law Section Executive Committee to the California State Bar. Appointed by Board of Trustees to serve from Oct. 2, 2016 to Sept. 15, 2019. (Effective Jan. 1, 2018, the State Bar Sections became the California Lawyers Association (CLA)).
Community Defenders Inc. (CDI) Program at University of San Diego Law School. Serve on a five-person committee that oversees using CDI funds for continuing legal education scholarships and programs for criminal defense attorneys. Each year we plan and produce a top-notch, full-day seminar focusing on a specific area of law. We also review law student bar-examination scholarship applications and attorney applications for reimbursement of certain continuing-legal-education costs (2012 to June 2019).
Ad hoc San Diego Superior Court criminal exhibits advisory committee reported to Assistant Presiding Judge Peter C. Deddeh regarding how best to preserve or dispose of criminal exhibits given space constraints in the new courthouse. Advisors included: (1) Kristine P. Nesthus, San Diego Superior Court Director of Legal Services/General Counsel; (2) David Greenberg, Chief Deputy District Attorney; (3) Elaine A. Alexander, Executive Director, Appellate Defenders, Inc.; (4) Michael Roddy, Superior Court CEO; (5) Alexander Simpson, California Innocence Project; (6) Julie Garland, Senior Assistant Attorney General; (7) Julie Gibson, Deputy Public Defender; and (8) Kurt Hermansen for the San Diego Criminal Defense Bar Association, and San Diego Criminal Defense Lawyer’s Club (2016–17).
United States District Court for the Southern District of California, Prisoner Litigation Committee chaired by the late U.S. Magistrate Judge David H. Bartick (Committee Member 2015–16).
San Diego’s Criminal Defense Bar Association (President 2015–16) (Vice President 2014–15) (Secretary 2013–14) (Treasurer 2012–13) (Board member 2009 to 2019).
Criminal Law Advisory Commission to the California State Bar’s Board of Legal Specialization. Reviewed, graded, and developed criminal law specialist examination; developed strategies for continuing education; performed outreach (Chair 2014–15) (Commissioner Oct. 2011 to Oct. 2015).
(Jan. 26, 2019) Joining the Brady Bunch: Getting What You Need, by Kurt Hermansen and Bridget Kennedy. Community Defenders, Inc., and University of San Diego School of Law.
(Aug. 28, 2018) Coached and trained military Judge Advocates at the San Diego Marine Corps Recruit Depot on how to litigate sexual assault cases; the training included plenary lectures and small group learn-by-doing breakout sessions.
(May 11, 2018) Supreme Court Update, by Tarik Adlai, Benjamin Coleman, Kurt Hermansen, and Jonathan Schneller. Annual Appellate Practice Seminar. Central District of California CJA Appellate Panel Training at the United States Court of Appeals for the Ninth Circuit.○ (Sept.10–15, 2017) Coached and trained military Judge Advocates at the San Diego Marine Corps Recruit Depot on how to litigate sexual assault cases; the training included plenary lectures and small group learn-by-doing breakout sessions.
(Sept. 28, 2017) Criminal Federal Legal Specialist Examination Preparation Webinar, by Kurt Hermansen, for the California State Bar and available through the California Lawyers Association.
(Sept.10–15, 2017) Coached and trained military Judge Advocates at the San Diego Marine Corps Recruit Depot on how to litigate sexual assault cases; the training included plenary lectures and small group learn-by-doing breakout sessions.
(May 19, 2017) Supreme Court Update presented by Tarik Adlai, Benjamin Coleman, Kurt Hermansen, and Beth Richardson-Royer. Annual Appellate Practice Seminar. Central District of California CJA Appellate Panel Training at the United States Court of Appeals for the Ninth Circuit.
(May 17, 2017) Federal Pro Bono Panel Presentation, by Hon. Janis L. Sammartino, Karen Beretsky, Melissa Bobrow, and Kurt Hermansen. Diego Chapter of the Federal Bar Association.
(Jan. 26, 2016) Winning with Concise Persuasion, by Kurt Hermansen and Devin Burstein. Criminal Defense Bar Association.
(2009 to 2016) Adjunct Professor for Trial Advocacy LL.M. Program. Taught Federal Trial Skills and Federal Motions Practice courses at California Western School of Law.
(Jan. 23, 2016) Federal and State Gang Motions and Case Law Update, by Kurt Hermansen and Jane Kinsey. Attacking State and Federal Gang Cases: Motions, Emotions, and Trial Tactics. Community Defenders, Inc., and University of San Diego School of Law.
(Jan. 25, 2014) Competency, by Kurt Hermansen and Dr. Bruce Yanofsky. Mental Health Meets the Courts: It’s a Mad, Mad, Mad, Mad World. Community Defenders, Inc., and University of San Diego School of Law.
(April 30, 2013, Jan. 25, 2011, Jan. 27, 2009) Gender and Sexual Orientation Bias, by Rebecca Jones and Kurt Hermansen. Criminal Defense Bar Association.
(March 19, 2013) Supreme Court Practice and Procedure — The View from the Ground, by Kurt Hermansen, Jonathan Libby, and Brianna Mircheff. Annual Criminal Justice Act Appellate Panel Seminar at the United States Court of Appeals for the Ninth Circuit.
Kurt D. Hermansen, Habeas Corpus: Scope of the Writ, Ch. 9, in APPEALS AND WRITS IN CRIMINAL CASES (CEB University of California 2018) (forthcoming 2019).
Kurt Hermansen, 1996 Habeas Corpus Reform, in NEW DEVELOPMENTS IN THE FED. LAW OF HABEAS CORPUS (Matthew Bender, pub. for Fed. Jud. Ctr. Sept. 1996).
Kurt D. Hermansen, Comment, Analyzing The Military’s Justifications For Its Exclusionary Policy: Fifty Years Without A Rational Basis, 26 Loy. L.A. L. Rev. 151 (1992). Comment cited for its “particularly thorough and insightful analysis,” Meinhold v. United States Dep’t of Defense, 808 F. Supp. 1455 (C.D. Cal. 1993), and cited in over thirty law review articles.
○ People v. Diaz, 21 Cal. App. 5th 538 (2018) (conditionally remanding to the juvenile court for a transfer hearing, and for a hearing under People v. Franklin (2016) 63 Cal.4th 261).
○ United States v. John Doe, 870 F.3d 991, 1002 (9th Cir. 2017) (reversing the denial of Doe’s motion to seal or strike docket-entry text mentioning § 5K1.1 where publicly revealing Doe’s cooperation would endanger Doe’s life and his family members’ lives)
○ United States v. Castillo-Mendez, 868 F.3d 830, 839 (9th Cir. 2017) (reversing conviction; finding “the district court’s legally erroneous and confusing supplemental instruction was prejudicial” in an attempted-illegal entry case, which requires proof of specific intent to enter free from official restraint)
○ Taylor v. Cate, (9th Cir.2014) 772 F.3d 842, 848 (9th Cir. 2014) (reversing conviction on federal habeas review; “Resentencing Taylor for a criminal role on which the jury was instructed, but did not find, violates his Sixth Amendment right to be tried and convicted by a jury.”)
> reh’g en banc granted by 787 F.3d 1241 (9th Cir. 2015)
> reversed by Taylor v. Beard, 811 F.3d 326, 335 (9th Cir. 2016) (en banc) (finding no constitutional violation)
○ Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011) (reversing conviction on federal habeas — under a de novo review standard — because a holdout juror was dismissed mid-deliberations)
> rev’d by Johnson v. Williams, 133 S.Ct. 1088 (2013)
(holding that an adjudication-on-the-merits presumption applies to reasoned opinions and finding the presumption was not rebutted)
> granting cert. and remanding 134 S.Ct. 2659 (2014)
(remanding for merits determination under deferential § 2254(d) standard)
> 824 F.3d 814 (9th Cir. 2016)
(finding relief unavailable on remand absent clearly established Supreme Court law regarding juror removal).
> In re Williams, No. B280379 (Cal. Ct. App. Aug. 31, 2017)
(reversing LWOP sentence by retroactively applying People v. Banks, 61 Cal.4th 788 (2015) and finding insufficient evidence of the reckless-indifference-to-human-life special circumstance where Williams was a robbery-felony-murder getaway driver, not a “major participant”).
○ In re Heard, 223 Cal.App.4th 115 (2014) (reversing Heard’s sentence of 23 years and 80 years to life and remanding for a resentencing hearing at which the court is to focus on the differences between adult offenders and juvenile offenders), review granted, 323 P.3d 1, remanded, 381 P.3d 221 (2016) (ordering Court of Appeal to remand to trial court to make a record of mitigating evidence associated with youth)
○ People v. Bernal, 222 Cal.App.4th 512, 520 (2013) (concluding “that forceful resistance of an officer by itself gives rise to a violation of section 69, even without proof that force was directed toward or used on any officer)
○ People v. Woodall, 216 Cal.App.4th 1221, 1238 (2013) (rejecting facial and as-applied constitutional challenges to the probation revocation procedures set forth in section 1203.2; “constru[ing] section 1203.2 to impliedly require a probable cause hearing if there is any significant delay between the probationer’s arrest and a final revocation hearing.”)
○ People v. Perez, 214 Cal.App.4th 49, 59–60 (2013) (upholding sixteen-year-old Perez’s 30-years to life sentence for a one-strike sex offense and finding the sentence is not cruel or unusual)
○ United States v. Rodriguez-Castro, 641 F.3d 1189, 1193 (9th Cir. 2011) (“The district court did not clearly err in finding that Rodriguez did not meet his burden to prove he had a minor role in the offense, and it did not abuse its discretion in declining to award Rodriguez the minor-role reduction under § 3B1.2(b).”)
○ Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding that the district court did not abuse its discretion by denying Roberts an evidentiary hearing, and affirming the denial of equitable tolling of the AEdPA’s statute of limitations despite some evidence of mental incompetence)
○ Slovik v. Yates, 556 F.3d 747, 755 (9th Cir. 2009) (reversing conviction [and life sentence] on federal habeas because “the trial court’s limit on Slovik’s ability to cross-examine Featherstone had a substantial and injurious effect or influence in determining the jury’s verdict.”)
○ People v. Hernandez, 180 Cal.App.4th 337, 345–46, 348–50 (2009) (acknowledging that appellate courts may review any instruction given, refused or modified, even where no objection was made below, but finding that Mayberry and unanimity instructions were unwarranted)
○ In re Jose C., 45 Cal.4th 534, 547–50 (Cal. 2009) (finding that juvenile wardship proceedings that entail adjudication of whether a federal criminal statute has been violated are not expressly preempted by 18 U.S.C. § 3231; finding that 8 U.S.C. § 1329 poses no jurisdictional preemption; finding that 8 U.S.C. § 1324 does not preempt states from substantively regulating immigration matters)
○ In re Angel R., 163 Cal.App.4th 905, 911–15 (2008) (finding that stickers are “marking substances” (i.e., graffiti tools) proscribed by section 594.2(c)(2); construing the plain language of section 654k, which defines when a knife becomes a proscribed switchblade)
○ Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008) (reversing district court’s dismissal of Woods’s petition for being barred as successive under 28 U.S.C. § 2244(b) because the district court should have construed Woods’s pro se petition as a motion to amend the habeas petition that was still pending before the district court when the new petition was filed)
○ Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008) (concluding that appellate courts cannot require that a habeas petitioner obtain a certificate of appealability following the denial of a petition under 28 U.S.C. § 2241 where such a petition qualifies for § 2255’s escape hatch)
○ Estrada v. Scribner, 512 F.3d 1227, 1237 (9th Cir. 2008) (“Although ‘having to ignore the most direct evidence of prejudice — [i.e., the jurors’] testimony that [a juror] relied on the extrinsic information — lends an ‘Alice in Wonderland’ quality to the discussion … the weight of authority and sound policy reasons support this view [of Fed. R. Evid. 606(b)].”)
○ United States v. Zepeda-Martinez, 470 F.3d 909 (9th Cir. 2006) (concluding “that the Apprendi error committed by the district court was harmless” under Neder v. United States, 527 U.S. 1 (1999))
○ United States v. Bahamonde, 445 F.3d 1225 (9th Cir. 2006) (reversing conviction; finding that 6 C.F.R. § 545(a), “as applied in this criminal prosecution, violates due process by failing to provide reciprocal discovery” as required by Wardius v. Oregon, 412 U.S. 470, 472 (1973); finding that the district court failed to weigh countervailing interests before excluding agent Rodmel’s testimony; finding that Bahamonde “need not reveal the nature of his anticipated defense testimony [from agent Rodmel] in order to challenge the regulation that improperly requires him to reveal such testimony.”)
○ United States v. Mays, 430 F.3d 963, 965–60 (9th Cir. 2005) (finding that district courts have jurisdiction to impose post-judgment garnishment orders on criminal defendants even after supervised release is terminated if the defendant fails to pay a judgment of restitution imposed by the court)
Proficient in Spanish and Italian.
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