Nev. 850, 853, 784 P.2d 951, 953 (1989). Both components of the inquiry
must be shown. Strickland v. Washington, 466 U.S. 668, 697 (1984).
First, appellant claimed that his appellate counsel failed to
federalize his claims for relief on appeal. Appellant failed to demonstrate
that there was a reasonable probability of a different outcome had
appellate counsel federalized his claims on appeal. Therefore, we conclude
that the district court did not err in denying this claim.
Second, appellant claimed that his appellate counsel failed to
raise a claim that his guilty plea was coerced because he was not provided
enough time to consider the plea and discovery and the amended
indictment failed to vest jurisdiction in the court. Appellant failed to
demonstrate that his counsel's performance was deficient or that he was
prejudiced. Appellant cannot ordinarily challenge the validity of the
guilty plea on direct appeal without first having litigated the claim in the
district court or without the error being obvious from the record. See
Smith v. State, 110 Nev. 1009, 1010 n.1, 879 P.2d 60, 61 n.1 (1994);
Bryant v. State, 102 Nev. 268, 272, 721 P.2d 364, 368 (1986). Appellant
did not file or pursue a presentence motion to withdraw a guilty plea in
the district court, and the error was not obvious from the record.
Therefore, we conclude that the district court did not err in denying this
claim. 2
2 We note that appellate counsel argued that the indictment was
improperly amended and that the plea was invalid because appellant felt
pressured and was unaware of the alleged defect to the amended
indictment. This court concluded that appellant waived challenging any
claim to the amended indictment by entry of his plea and that under the
totality of the circumstances appellant failed to demonstrate that his plea
continued on next page...
2
Third, appellant claimed that his appellate counsel failed to
argue that the district court did not have jurisdiction to accept his plea
because the amended indictment changed the category of the offenses from
Category B trafficking to Category A trafficking. Appellant's claim is
belied by the record as appellate counsel did argue that the indictment
was not properly amended. Appellant failed to demonstrate that there
was a reasonable probability of a different outcome had appellate counsel
raised further arguments on this issue. Therefore, we conclude that the
district court did not err in denying this claim.
Finally, appellant claimed that the appeal-deprivation remedy
provided for in Lozada v. State, 110 Nev. 349, 871 P.2d 944 (1994) was
unconstitutional. This claim was outside the scope of claims permissible
in a post-conviction petition for a writ of habeas corpus challenging the
validity of a judgment of conviction arising from a guilty plea. NRS
34.810(1)(a). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Ac, ,J.
Hardesty
p p...),
Parraguirre
J.
...continued
was invalid. Tate v. State, Docket No. 57228 (Order of Affirmance,
November 18, 2011).
SUPREME COURT
OF
NEVADA
3
(0) 1947A -41 Ar:
cc: Hon. Douglas W. Herndon, District Judge
Lionel Tate
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
4